People v. Cunningham

• Decision Date: 15 January 1980
• Parties: , 400 N.E.2d 360 The PEOPLE of the State of New York, Respondent, v. Frederick CUNNINGHAM, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 421

424 N.Y.S.2d 421

49 N.Y.2d 203, 400 N.E.2d 360

The PEOPLE of the State of New York, Respondent, v. Frederick CUNNINGHAM, Appellant.

Court of Appeals of New York.

Jan. 15, 1980.

Lewis R. Friedman, Herman Kaufman and Richard M. Asche, New York City, for appellant

John R. King, Dist. Atty. (Bridget R. Rahilly, Poughkeepsie, of counsel), for respondent.

OPINION OF THE COURT

PER CURIAM.

We hold that once a suspect in custody requests the assistance of counsel he may not be questioned further in the absence of an attorney. We intend by our holding to make it clear that an uncounseled waiver of a constitutional right will not be deemed voluntary if its is made after the right to counsel has been invoked.

Defendant Frederick Cunningham was tried and convicted of murder in the second degree as a result of his alleged participation in a gas station robbery in which a service attendant was shot to death. One of the most damaging pieces of evidence offered against him at trial was a statement he had given to the police on the night he was arrested. Defendant made a pretrial motion to suppress the statement as being involuntarily made, but the trial court denied the motion, finding that the statement was in all respects voluntary. Defendant's conviction was subsequently affirmed, without opinion, by the Appellate Division. We reverse because we conclude that the trial court's finding that the inculpatory statement was "voluntary" is not supported by the facts.

Defendant was apprehended at his home at about 7:00 p. m. on the evening of March 7, 1975. He was taken to police headquarters and promptly given the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). Although he initially agreed to speak with the police concerning his activities on the day of the robbery, he gave them no incriminating information at this point in the questioning.

Between the hours of 8:00 p. m. and 10:30 p. m., defendant spoke casually with the police officers, but there was no discussion of the robbery and shooting. Defendant was not handcuffed or placed under any unwarranted pressure during this period. ¹ At approximately 10:30 p. m., defendant was informed that he was formally being placed under arrest and was again given Miranda warnings. It was at this point that defendant told the police that he was unwilling to sign a waiver of his constitutional rights and that he wished to consult with an attorney. In response to this request, the police officers told defendant that he would be permitted to speak with an attorney after he had been "booked" and arraigned. The interview was then terminated, and defendant was formally "booked" and placed in a jail cell. The police made no effort to obtain an attorney for defendant while he was awaiting arraignment.

At about 1:30 a. m., defendant called police officers to his cell and told them that he wished to make a statement. When he was taken from his cell, given additional Miranda warnings and asked to sign a written waiver form, however, defendant once again balked, reiterating his desire to consult with a lawyer. As had occurred earlier in the evening, the police immediately cut off the questioning and started to return defendant to his jail cell. As they proceeded through the public waiting room on the way back to the cell, defendant spotted his wife, who had been sitting in the police station ever since her husband was arrested earlier that evening. Defendant asked for and received permission to confer with her in private for a few moments. When he emerged from the conversation, defendant indicated that he had changed his mind and was now willing to speak with the police without the aid of an attorney. Thereafter, defendant signed a preprinted form waiving his constitutional rights and made the inculpatory statements which he later sought to have suppressed.

In determining that these statements should have been suppressed, we recognize that the United States Supreme Court has not yet definitively described the conditions under which a defendant may subsequently waive his right to counsel after he has unequivocally asserted the right. Although the court has stated: "(i)f the individual states that he wants an attorney, the interrogation must cease until an attorney is present" (Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, Supra ), it has never firmly held that a suspect in custody may not change his mind and make an effective uncounseled waiver after he has invoked his right to counsel (see Michigan v. Mosley, 423 U.S. 96, 101, n.7, 96 S.Ct. 321, 325 n.7, 46 L.Ed.2d 313; People v. Grant, 45 N.Y.2d 366, 373-375, 408 N.Y.S.2d 429, 432-433, 380 N.E.2d 257, 260-261). As we recently noted in Grant (Supra, at pp. 375-376, 408 N.Y.S.2d at pp. 433-434, 380 N.E.2d at pp. 261-262), the most that can be discerned from the Supreme Court's decisions to date is that a waiver of a constitutional right will not be deemed "voluntary" unless the police have "scrupulously honored" the suspect's prior assertion of his rights (see People v. Dean, 47 N.Y.2d 967, 419 N.Y.S.2d 957, 393 N.E.2d 1030; People v. Clark, 45 N.Y.2d 432, 408 N.Y.S.2d 463, 380 N.E.2d 290; People v. Munlin, 45 N.Y.2d 427, 408 N.Y.S.2d 461, 380 N.E.2d 288; People v. Buxton, 44 N.Y.2d 33, 403 N.Y.S.2d 487, 374 N.E.2d 384).

Nonetheless, we find it unnecessary to anticipate how the Supreme Court would decide the present case under existing principles of Federal constitutional law, for we conclude that the issue presented here may be resolved by application of principles that are firmly rooted in our State's constitutional and statutory guarantees of due process of law, the privilege against self incrimination and the right to the assistance of counsel (see People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709; People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537; People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628). This court has consistently exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him (e. g., People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825). Our special solicitude for this fundamental right is based upon our belief that the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when he is directly confronted with the awesome law enforcement machinery possessed by the State (People v. Settles, supra, at p. 161; People v. Hobson, supra, 39 N.Y.2d at p. 485, 384 N.Y.S.2d at p. 423, 348 N.E.2d at p. 899). Recognizing that the preinterrogation warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Supra cannot ensure that an accused will not "waive" an important constitutional right out of ignorance, confusion or fear, we have held that, in certain situations, the right to counsel in New York includes the right of an accused to have an attorney present while he is considering whether to waive his rights. Such a rule, we have stated, "breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary" (People v. Hobson, supra, 39 N.Y.2d at p. 484, 384 N.Y.S.2d at p. 422, 348 N.E.2d at p. 898).

The evolution of this aspect of the right to counsel has been traced in a number of opinions and scholarly articles (e. g., People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, Supra ; People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612, Supra ; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894, Supra ; 5 Fordham Urban L.J. 401, 409; 52 St. John's L.Rev. 485, 505-511; 51 St. John's L.Rev. 201, 216-222). Basically, there have been two distinct lines of cases in which the right to counsel has been said to attach "indelibly" (see People v. Settles, supra, at p. 165, 412 N.Y.S.2d 874, 385 N.E.2d 612) so that the right may not be waived outside the presence of the defendant's attorney. In the first group of cases, we have said that an "indelible" right to counsel attaches upon the commencement of formal adversary proceedings (e. g., People v. Settles, supra ; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825, Supra ; cf. People v. Coleman, 43 N.Y.2d 222, 401 N.Y.S.2d 57, 371 N.E.2d 819). Thus, after a suspect has been indicted (People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445; see People v. Settles, supra ; People v. Hobson, supra ) or arraigned (People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; see, also, People v. Bodie, 16 N.Y.2d 275, 266 N.Y.S.2d 104, 213 N.E.2d 441) or charged in a felony complaint (People v. Samuels, 49 N.Y.2d ---, --- N.Y.S.2d ----, --- N.E.2d ----), he cannot make an effective waiver of his rights to remain silent and to have the assistance of counsel unless his attorney is present at the time of the waiver. This is so even in instances where the accused has neither retained nor requested an attorney (see People v. Settles, Supra ).

In a second line of cases, we extended the "indelible" right to counsel to cases in which formal adversary proceedings have not yet been commenced, but we limited its application to suspects in custody who had already retained or been assigned counsel to represent them on the specific charge for which they were being held. This line of cases had its roots in our decision in People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628, Supra, in which we held that principles of fundamental fairness are violated when a defendant in custody is interrogated "after he or the lawyer...