Jewell v. State , 32S04–1104–CR–200.

• Citation: 957 N.E.2d 625
• Decision Date: 30 November 2011
• Docket Number: No. 32S04–1104–CR–200.,32S04–1104–CR–200.
• Parties: Christopher JEWELL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

957 N.E.2d 625

Christopher JEWELL, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 32S04–1104–CR–200.

Supreme Court of Indiana.

Nov. 30, 2011.

James H. Voyles, Jr., Jennifer M. Lukemeyer, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 32A04–1003–CR–00187

SHEPARD, Chief Justice.

When a defendant is represented by a lawyer for a particular offense, do the police violate his right to counsel if they approach him about a different offense? Under the Sixth Amendment, the answer is no. We hold that under the broader protections of Article 1, Section 13, of the Indiana Constitution, the right to counsel is violated only where the different offense is inextricably intertwined with the charge on which counsel is already representing the defendant. Nevertheless, we affirm the judgment of the trial court.

Facts and Procedural History

In August 2008, Christopher Jewell was arrested and charged with tattooing a minor, a class A misdemeanor, for allegedly taking his former stepdaughter T.S. to get a tattoo.¹ Detective Terry Judy investigated the case for the Hendricks County Sheriff's Department. Released on bond, Jewell retained counsel for the charge.

Shortly thereafter, but while the tattooing charge was still pending, T.S. got into an argument with her boyfriend. During the course of the argument, she revealed that Jewell forced a sexual relationship upon her while Jewell and her mother were married. T.S.'s mother contacted the police and Detective Judy also began to investigate the alleged sex crimes. The sexual relationship appeared to last from March 25, 2004, through June 30, 2007. T.S. was between thirteen and sixteen years of age during this period.

Detective Judy arranged for T.S. to make recorded phone calls to Jewell in order to obtain evidence concerning sexual misconduct. T.S. made two such calls in late August 2008. Detective Judy was present and listening in during the calls and prompted T.S. with notes on things to say and questions to ask. During the course of the conversations, Jewell mentioned the pending misdemeanor charge and that he had obtained an attorney for that charge, but also made several potentially incriminating statements about sexual misconduct. (Tr. at 37–38, 40–46, 49–57, 65–66; State's Ex. 7, 10.) At no point during the phone conversations did T.S. indicate that she was working with, or in the presence of, the police.

The State then charged Jewell with three counts of sexual misconduct with a minor, two as class B felonies and one as a class C felony,² one count of felony child molesting, a class C felony,³ and two counts of child seduction, a class D felony.⁴ It eventually dismissed the tattooing charge.

Jewell moved to suppress the incriminating statements from the recorded conversations, claiming they were obtained in violation of his right to counsel under the Sixth Amendment and Article 1, Section 13, of the Indiana Constitution. Following a hearing, the trial court denied the motion. The court admitted the evidence at trial over Jewell's renewed objection.

A jury found Jewell guilty of all six counts, and the trial court sentenced him to a total of forty years: consecutive twenty-year terms for the class B felonies with concurrent eight-year terms for each class C felony and concurrent three-year terms for each class D felony. Jewell appealed.

The Court of Appeals affirmed. Jewell v. State, 938 N.E.2d 1283 (Ind.Ct.App.2010). It noted that the Sixth Amendment's protection is specific to the offense on which counsel represents a defendant, citing Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). It found no precedent for any broader protection of the attorney-client relationship under Article 1, Section 13, of our constitution. Id. at 1290.

We granted transfer, thereby vacating the opinion of the Court of Appeals, to consider whether an “inextricably intertwined” exception exists under Article 1, Section 13. Jewell v. State, 950 N.E.2d 1205 (Ind.2011) (table).

I. Origin and Application of the “Inextricably Intertwined” Exception

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The purpose of this guarantee is “to ‘protec [t] the unaided layman at critical confrontations' with his ‘expert adversary,’ the government, after ‘the adverse positions of government and defendant have solidified’ with respect to a particular alleged crime.” McNeil v. Wisconsin, 501 U.S. 171, 177–78, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (emphasis in original) (quoting United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)). As such, its protections are “offense specific,” do not attach until formal commencement of adversarial proceedings, and “cannot be invoked once for all future prosecutions.” Id. at 175, 111 S.Ct. 2204.

While the Sixth Amendment's right to counsel is broadly viewed as “offense specific,” most federal circuits traditionally recognized two exceptions. These were the “inextricably intertwined” (or “closely related”) exception and the “circumvention of Sixth Amendment right” exception, both inferred from the holdings of the U.S. Supreme Court in Brewer v. Williams ⁵ and Maine v. Moulton.⁶ See, e.g., United States v. Covarrubias, 179 F.3d 1219, 1223 (9th Cir.1999), abrogated by Cobb, 532 U.S. at 168 n. 1, 121 S.Ct. 1335. The “circumvention of the Sixth Amendment right” exception applies when the government or state breaches its “ ‘affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.’ ” Id. at 1223 n. 6 (quoting Moulton, 474 U.S. at 171, 106 S.Ct. 477). See also Moulton, 474 U.S. at 176, 106 S.Ct. 477 (“Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.”). The crux of this exception is the knowing use of state agents to obtain incriminating statements relevant to pending charges for which a defendant has already obtained counsel. It does not apply to statements obtained by “luck or happenstance.” See Moulton, 474 U.S. at 176, 106 S.Ct. 477.

A. Federal Appellate Courts. The Ninth Circuit provided probably the best articulation and application of the “inextricably intertwined” exception. Covarrubias, 179 F.3d at 1223–26. In Covarrubias, the defendants allegedly drove eight individuals—some of whom were believed to be illegal immigrants—from California to Washington. After dropping off seven of the individuals at various locations around Washington, the defendants got in a dispute with the eighth over the amount of payment and refused to let him leave the van. Local police arrested the defendants on charges of kidnapping, and the court appointed counsel at a subsequent arraignment. Id. at 1222.

Following their arraignment, a federal agent from Immigration and Naturalization Services (INS) visited the defendants in the local jail and interrogated them about both the state kidnapping charge and a potential federal charge for transporting illegal aliens.⁷ Id. Though the agent provided Miranda warnings—waived by the defendants—the agent made no attempt to contact the defendants' appointed counsel. Id. at 1222 n. 4. A few months later the state charges were dropped, and the defendants were immediately indicted on federal charges of moving an illegal alien and forfeiture. The federal district court suppressed the statements made to the INS agent, finding support for both exceptions to the offense-specific rule of the Sixth Amendment right to counsel. The Ninth Circuit affirmed, applying only the “inextricably intertwined” exception. Id. at 1222–26.

It noted that the exception has been applied “ ‘when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.’ ” Id. at 1223 (quoting United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992)). “[T]he inquiry focuses on the nature of the conduct involved rather than on the elements of the offense itself.” Id. at 1225. Application of the exception requires examining and comparing “all of the facts and circumstances” related to the conduct, “including the identity of the persons involved (including the victim, if any), and the timing, motive, and location of the crimes.” Id. None of those factors is viewed as particularly dispositive, nor do all factors need to tip in favor of the exception for the offenses to be “inextricably intertwined.” Id. However, “[t]he greater the commonality of the factors and the more directly linked the conduct involved, the more likely it is that courts will find the exception to be applicable.” Id.

The Covarrubias court then examined those factors and found the state crime of kidnapping and the federal crime of transporting illegal aliens to be “inextricably intertwined.” Id. at 1225–26. The timing of the two crimes overlapped and involved “a continuous course of conduct,” and the identity of the individuals overlapped as well—the defendants were perpetrators in both crimes and the kidnapped victim of the state crime was the transported illegal alien in the federal crime. Id. Furthermore, the court found that the situs for both crimes overlapped, to some degree, in Washington; the defendants had an identical motive for both crimes; and both crimes arose from the same set of facts. Id. The court also pointed out that, as a practical matter, the degree of relation between the crimes was easily...