Holloway v. State

• Decision Date: 18 October 1989
• Docket Number: No. 68925,68925
• Citation: 780 S.W.2d 787
• Parties: Emmett Murray HOLLOWAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 787

780 S.W.2d 787

58 USLW 2299

Emmett Murray HOLLOWAY, Appellant, v. The STATE of Texas, Appellee.

No. 68925.

Court of Criminal Appeals of Texas En Banc.

Oct. 18, 1989.

Clifton L. Holmes, Longview, for appellant.

Carter Beckworth, Dist. Atty., and R. Clement Dunn, First Asst. Dist. Atty., Longview, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

McCORMICK, Presiding Judge.

Appellant, Emmett Murray Holloway, was convicted of capital murder and the death penalty was assessed. This Court affirmed the conviction holding, inter alia, that appellant's constitutional rights had not been denied when police officers procured inculpatory statements from him after he had been appointed counsel. We specifically held that appellant's Fifth, Sixth and Fourteenth Amendment rights to counsel had not been violated. Holloway v. State, 691 S.W.2d 608, 614-15 (Tex.Cr.App.1984).

Appellant challenged our holding in the Supreme Court of the United States. That Court summarily granted appellant's petition for writ of certiorari, vacated the judgment of this Court and remanded the case back to us to consider appellant's allegations in light of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), and Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). See Holloway v. Texas, 475 U.S. 1105, 106 S.Ct. 1508, 89 L.Ed.2d 908 (1986). We now reverse.

Appellant shot and killed a Longview police officer as the officer attempted to arrest appellant for aggravated robbery. After a high speed chase, appellant was subsequently arrested in the early morning hours of November 23, 1977, in Gilmer. While there, appellant was taken before a magistrate and given the warnings per Article 15.17, V.A.C.C.P. Later in the day, he was transferred to a Longview county jail. Again he was taken before a magistrate and given the same warnings. On that same day, appellant was indicted for the capital murder of the police officer.

Around two-thirty p.m., an attorney, Bob Moore, was appointed by Judge Adkinson to represent appellant. Moore learned of this appointment through Gregg County Assistant District Attorney, Alvin Khoury, who telephoned Moore to inform him. Moore tried to telephone Judge Adkinson to refuse the appointment but was unable to reach the judge. He then went to the Longview jail. While at the jail, Moore saw Frank Odam, a Gregg County District Attorney's Office investigator. Moore told Odam that he was appellant's counsel. Moore was allowed to talk with appellant and after telling him not to submit to any questioning, the attorney left town for the Thanksgiving holidays.

On November 24, 1977, Thanksgiving Day, appellant was interviewed by two investigators from the Longview Police Department, Mike Maxey and Travis Puckett. After he was given his Miranda warnings, appellant stated that he did not want an attorney and that he understood his rights. Appellant then made inculpatory statements which were used against him at his trial.

At trial, appellant objected to the State's use of the confession asserting that it had been obtained in violation of his Sixth Amendment right to counsel. ¹ The State has responded to appellant's renewed Sixth Amendment claim and the Supreme Court's remand order. The State asserts that (1) Jackson is inapplicable because in this case appellant never invoked his right to counsel and, (2) Burbine 's holding that a client's right to counsel is personal and cannot be invoked by a defendant's attorney must lead this Court to conclude that appellant's confession was not obtained in violation of any right to counsel. By inference, the State wishes that we find appellant has waived any right to counsel afforded him by the Constitution and, as such, the subsequent confession was not the product of any constitutional violation. We agree Jackson is inapplicable to the situation before us but find that the State has misread the Burbine opinion. For the following reasons based upon appellant's Sixth Amendment claim, we will reverse the conviction.

I. Michigan v. Jackson

In Miranda v. Arizona, 384 U.S. 436, 471-473, 86 S.Ct. 1602, 1626-27, 16 L.Ed.2d 694 (1966), the Supreme Court determined that in certain pretrial settings, the Fifth Amendment privilege against compulsory self-incrimination requires a protective shield against the State and concluded that legal assistance should be integral to this shield. See Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974). The Supreme Court had determined in Miranda that if an interrogation continues without the presence of an attorney and a statement is taken, a burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.

Fifteen years after Miranda, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court considered the ramifications of a Fifth Amendment invocation. Believing it "inconsistent with Miranda and its progeny for the authorities at their insistence, to interrogate a suspect in custody if he has clearly asserted his right to counsel," the Edwards Court concluded that after such an assertion, interrogation must cease and may begin again only if "counsel has been made available ... [or] the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 484-485, 101 S.Ct. at 1884-85. According to the Edwards' doctrine, if suspects who have invoked their Miranda right to counsel initiate further communication and waive their Fifth Amendment rights, then resumption of interrogation without counsel is constitutional. If, however, subsequent interrogation is initiated by law enforcement, no waiver of counsel (no matter how apparently knowing and voluntary) is valid.

Subsequent to Edwards, the Supreme Court decided Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). There, the Court extended Edwards per se exclusionary rule into a Sixth Amendment context, specifically holding:

"Edwards is grounded in the understanding that the assertion of the right to counsel is a significant event and that additional safeguards are necessary when the accused asks for counsel. We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that, if police interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.

"Although the Edwards decision itself rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the Michigan Supreme Court correctly perceived that the reasoning of that case applies with even greater force to [Sixth Amendment] cases." Jackson, 475 U.S. at 636, 106 S.Ct. at 1411.

Respondent Jackson had explicitly requested counsel, thereby expressing a desire to deal with authorities only through counsel. Jackson 's ban on police-initiated interrogation, therefore, was based not on the mere existence of the right to counsel but upon the accused's actual invocation of that right. In the case before us, however, appellant never requested counsel. Nevertheless, he asks the we extend the holding in Jackson to the situation before us. We decline to do so.

A similar request to extend Edwards, and thus its progeny, Jackson, so as to preclude contact with an accused in a postindictment custodial interrogation context, was made in Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). There, the Supreme Court held:

"At bottom, petitioner's theory cannot be squared with our holding in Edwards, the case he relies on for support. Edwards rested on the view that once 'an accused ... has expressed his desire to deal with police only through counsel' he should 'not [be] subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications.' Edwards, supra [451 U.S.], at 484-485 ; cf. also Michigan v. Mosley, 423 U.S. 96, 104 n. 10 [96 S.Ct. 321, 326 n. 10, 46 L.Ed.2d 313] (1975). Preserving the integrity of an accused's choice to communicate with the police only through counsel is the essence of Edwards and its progeny--not barring an accused from making an initial election as to whether he will face the State's officers during questioning with the aid of counsel, or go it alone. If an accused 'knowingly and intelligently' pursues the latter course, we see no reason why the uncounseled statements he then makes must be excluded at his trial." Patterson, 108 S.Ct. at 2394 (emphasis in the original).

In short, Edwards and Jackson are concerned with providing an accused or suspect--not the attorney--with the means by which he may effectuate a decision to not deal with authorities alone. Invocation of counsel is therefore essential to bar further police contact with a suspect in the Fifth Amendment context or an accused in the Sixth Amendment context. Here, appellant never requested counsel's presence during the police interview or at anytime before that interview, therefore, as the State asserts, Jackson is inapplicable.

II. Moran v. Burbine

Although we agree with the State that the rationale of Jackson is inapplicable, this finding does not necessarily lead us to the conclusion that because appellant never requested counsel his waiver of counsel was valid. ² While Jackson extended Fifth Amendment anticompulsion principles into a Sixth Amendment context, principles concerning the waiver of a Fifth Amendment...