Green v. State

• Decision Date: 11 September 1996
• Docket Number: No. 71762,71762
• Citation: 934 S.W.2d 92
• Parties: Dominique Jerome GREEN, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 92

934 S.W.2d 92

Dominique Jerome GREEN, Appellant, v. STATE of Texas, Appellee.

No. 71762.

Court of Criminal Appeals of Texas.

Sept. 11, 1996.

Rehearing Denied Nov. 13, 1996.

Michael P. Fosher, Brent Newton, Charles L. Brayden, amicus curiae, for appellant.

Kimberly Aperauch Stelter, Assistant District Attorney, Houston, Matthew Paul, State's Attorney, Austin, for appellee.

OPINION

MALONEY, Justice.

Appellant was convicted of capital murder pursuant to Tex. Penal Code Ann. § 19.03(a)(2). The jury made findings on the three special issues and the trial court imposed the sentence of death. Direct appeal to this Court is automatic. Tex.Code Crim. Proc. Ann. art. 37.071(2)(h). Initially, we sustained appellant's first point of error, abated the appeal, and remanded the cause to the trial court so that it could enter its findings of fact and conclusions of law regarding appellant's confession. Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995). We now address appellant's remaining points of error.

Appellant does not challenge the sufficiency of the evidence to support the conviction; we dispense with a recitation of the facts of the case.

In points of error two through nine, appellant claims his October 21, 1992, statement was obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution. ¹ We will first address his second, third, eighth, and ninth points of error.

Appellant was arrested October 17, 1992, in connection with an aggravated robbery unrelated to the murder in issue here. Appellant was advised of his rights pursuant to Tex.Code Crim. Proc. Ann. art. 38.22, § 2(a). He waived his rights and made a statement concerning the robbery to the police, and was then charged with aggravated robbery. A few days later appellant was taken to a magistrate who appointed a lawyer to represent appellant on the aggravated robbery charge. Subsequently, Harris County authorities were able to determine through ballistic comparisons that a gun recovered from the car in which appellant was riding when he was arrested for the aggravated robbery had fired a bullet found at the scene of the murder in issue here. Appellant was transferred from the Harris County jail to the Houston Police Department Homicide Division for questioning specifically about the murder. Appellant's court-appointed attorney in the robbery case was not informed of this questioning. Appellant once again received his statutory warnings, which he waived, and gave a statement to the police in which he admitted being present at the scene of the murder and serving as a "lookout." Appellant's motion to suppress this statement was denied and the statement was admitted into evidence over appellant's objection.

Appellant contends that admission of his statement violated his Fifth and Sixth Amendment rights to counsel. Appellant claims that his Fifth and Sixth Amendment rights to counsel were invoked when he requested a lawyer at his preliminary appearance before the magistrate in connection with his aggravated robbery charge, and that the absence of his appointed lawyer at the October 21st interrogation about the murder violated both his Fifth and Sixth Amendment rights. The record demonstrates that appellant requested and was appointed an attorney when he appeared before the magistrate.

In support of his Fifth Amendment claim, appellant relies on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). In Edwards v. Arizona, the United States Supreme Court held that once a suspect invokes his Fifth Amendment right to counsel, he cannot be further interrogated by the police until counsel has been provided, or the suspect himself initiates further communication with the police. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85. In Arizona v. Roberson, the Supreme Court held that the rule in Edwards also applies to situations in which a suspect invokes his Fifth Amendment right to counsel regarding one crime and is then interrogated about an unrelated crime. Roberson, 486 U.S. at 685-88, 108 S.Ct. at 2100-02.

In McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), the United States Supreme Court held that an accused's Sixth Amendment right to counsel at an initial appearance does not constitute an invocation of his Fifth Amendment right to counsel. Although the Fifth Amendment right to counsel is non-offense specific, and once asserted prevents any further interrogation without the presence of counsel, the Fifth Amendment right cannot be inferred from the invocation of the Sixth Amendment right in view of the differing purposes of the two rights. Id. at 177-78, 111 S.Ct. at 2208-09. The invocation of an accused's Fifth Amendment right, the Supreme Court reasoned, "requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." Id. at 178, 111 S.Ct. at 2209 (emphasis in original). The Court held that "requesting the assistance of an attorney at a bail hearing does not bear that construction." Id.

Here, appellant argues he invoked his Fifth Amendment right to counsel when he appeared before the magistrate and "expressly asked" the magistrate to appoint him an attorney. However, appellant does not claim, nor does the record demonstrate, that appellant was subjected to custodial interrogation when he appeared before the magistrate and was appointed counsel in connection with the robbery. Like the hearing in McNeil, appellant's request for an attorney at his appearance associated with the robbery was not an expression for assistance in dealing with custodial interrogation by the police. Furthermore, at no time did appellant request the assistance of counsel in response to police questioning of him concerning his October 21st statement. We find appellant failed to invoke his Fifth Amendment right to counsel. McNeil, 501 U.S. at 178, 111 S.Ct. at 2209; see Dinkins v. State, 894 S.W.2d 330, 351 (Tex.Crim.App.1995) (holding Fifth Amendment right to counsel "is considered invoked [when] a person indicates he or she desires to speak to an attorney or have an attorney present during questioning").

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." Unlike the Fifth Amendment right to counsel, the Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is, "at or after the initiation of adversary judicial proceedings against the defendant." United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984); Green v. State, 872 S.W.2d 717, 719 (Tex.Crim.App.1994). It is undisputed that when appellant was charged with aggravated robbery, his Sixth Amendment right to counsel attached and was invoked with respect to that offense. Appellant's invocation of his Sixth Amendment right to counsel in connection with the robbery charge, however, does not impact on appellant's Sixth Amendment right relating to the murder. In McNeil, the Supreme Court held that the rule in Roberson, which extends the invocation of the Fifth Amendment right to counsel from one crime to another, does not apply to the Sixth Amendment right to counsel. McNeil, 501 U.S. at 181, 111 S.Ct. at 2210. The Court reasoned that because the Sixth Amendment is offense-specific "[i]t cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced,...." Id. at 175, 111 S.Ct. at 2207. Therefore, appellant's invocation of his Sixth Amendment right to counsel with respect to the robbery offense did not extend to the murder offense. Appellant concedes that he had not been charged with murder when the police questioned him about that crime. It is important to note that appellant was only being questioned and that the inquiry was restricted to questions about the murder. Because the Sixth Amendment right to counsel attaches only after adversary judicial proceedings are initiated, and appellant had not been charged with the murder at the time he claims his Sixth Amendment right to counsel arose, his argument must fail. Points of error two, three, eight, and nine are overruled.

In point of error four, appellant alleges that his statement was inadmissible because he invoked his Fifth Amendment right to counsel while he was being questioned about the murder. Specifically, appellant claims he told the interrogating police officers that he was represented by counsel, but they continued to question him outside the presence of his attorney. At the hearing to suppress his confession, appellant testified that he asked the officers to call his lawyer and gave them his attorney's business card, but the officers told him they could not locate his attorney. He further testified that the police handed him a pre-written statement which they told him to sign. Another individual also being questioned about the murder, Mark Porter, testified that when he and appellant first arrived at the police station they were placed in a room together, but that the officers did not talk to him and appellant together. The officers then took Porter to another place and began questioning him about the murder. He also testified that after both he and appellant gave their written statements to the police, they were again placed in a room together. The police began questioning appellant further about the murder and at this point, Porter testified, he heard appellant ask the officers to get his attorney.

The officers present when appellant gave his statement testified that appellant was repeatedly given his Miranda warnings and that he repeatedly waived his rights. The interrogating officer, Sergeant Novak, testified that appellant and Porter were "split...