People v. Houston

• Decision Date: 02 October 1986
• Citation: 724 P.2d 1166,42 Cal.3d 595,230 Cal.Rptr. 141
• Court: California Supreme Court
• Parties: , 724 P.2d 1166, 55 USLW 2207 The PEOPLE, Plaintiff and Respondent, v. Charles Caleb HOUSTON, Defendant and Appellant. Crim. 23713.

Page 141

230 Cal.Rptr. 141

42 Cal.3d 595, 724 P.2d 1166, 55 USLW 2207

The PEOPLE, Plaintiff and Respondent, v. Charles Caleb HOUSTON, Defendant and Appellant.

Crim. 23713.

Supreme Court of California.

Oct. 2, 1986.

Rehearing Denied Dec. 4, 1986.

Stephen V. Bomse, Charles N. Freiberg, Eric R. Havian, Heller, Ehrman, White & McAuliffe and William Everett Glass, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Ann K. Jensen and Dane R. Gillette, Deputy Attys. Gen., for plaintiff and respondent.

GRODIN, Justice.

On the basis of his confession and the transcript of his preliminary hearing, defendant was convicted in a court trial of selling cocaine (Health & Saf. Code, § 11352) and conspiracy to sell cocaine (Pen.Code, § 182). He was placed on probation with a condition that he serve nine months in jail. He urges that his confession should not have been admitted, even though he waived his Miranda rights, ¹ because the police thereafter held him incommunicado, deliberately keeping him ignorant that a lawyer retained by friends to assist him was at the police station attempting to consult with him.

A majority of the United States Supreme Court has recently concluded that such tactics do not contravene federal law. Nonetheless, we agree with defendant that the police conduct at issue here violated defendant's Miranda rights as they apply in California, and also thwarted his separate California constitutional right of access to counsel at a "critical stage" of the proceedings against him. ² They vitiated defendant's earlier waiver of counsel and rendered inadmissible any statements he made after his lawyer's arrival at the station. Like the trial court, we are unable to conclude beyond a reasonable doubt that defendant's confession occurred before that time. Hence, it should have been excluded from evidence, and his conviction must be reversed. ³

I. FACTS

On July 11, 1980, about 6 p.m., Walnut Creek police and state narcotics authorities arrested Robert Fitz-Stephens in a Gemco parking lot when he displayed two pounds of cocaine to an undercover agent who had agreed to purchase it. While purchase negotiations were proceeding, the police had twice followed Fitz-Stephens to a residence defendant shared with his fiancee, Patricia Jarvis. During Fitz-Stephens' second visit, in the late afternoon of July 11, defendant left the house and returned about 20 minutes later. Within a few moments, Fitz-Stephens departed and went directly to the Gemco lot where he was arrested with the cocaine.

Persuaded that defendant had obtained the cocaine for Fitz-Stephens, the police arrested him shortly after 8 p.m. on July 11. They took him to the Walnut Creek police station and read him his Miranda rights, which he concedes he waived. Sometime before about 9:20 p.m., defendant confessed in detail his involvement in the narcotics transaction and agreed to cooperate in "setting up" his supplier.

Meanwhile, within minutes after defendant's arrest, two friends, Michael Crosno and Crosno's wife (who is Jarvis' sister), had driven by defendant's residence and noticed strange vehicles and people on the premises. They stopped and spoke briefly to Jarvis, who was still at the house but said she was also being taken into custody. Michael Crosno then called Attorney Brock Gowdy from a nearby pay phone. Gowdy, a partner in the San Francisco law firm of Brobeck, Phleger and Harrison, knew both Crosno and defendant and had given defendant legal advice in the past. Crosno asked Gowdy if he would represent defendant and Jarvis. Gowdy agreed.

Gowdy testified he called the Walnut Creek station at 8:40 p.m. and spoke with Sergeant Hennefer, who was one of the interrogating officers. Gowdy said he identified himself as an attorney and asked to speak to defendant and Jarvis. He requested that nothing further occur until he came to the station and said he would arrive shortly. According to Gowdy, Hennefer said he was "not sure" defendant and Jarvis were there, but if they were, he would relay the message.

Gowdy arrived at the station about 9 p.m. He spoke, among others, with Hennefer and Eugene Williams, a state narcotics agent who was also involved in questioning defendant. Gowdy testified that he again identified himself as an attorney representing defendant and Jarvis; ⁴ he asked to see them immediately. He was told questioning was not complete and was not permitted to speak to defendant for over an hour. Defendant was not told during this period that Gowdy had called or come to the station.

The trial court found beyond doubt that defendant's confession was voluntary. It also accepted that Gowdy had called and come to the Walnut Creek police station on the night of July 11. It determined, however, that it "[did] not know" whether defendant's confession came before or after Gowdy's attempted intervention. "If," said the court, "it must be proved by the People beyond a reasonable doubt and to a moral certainty, that inculpatory statements were completed before that occurred, the People have failed their burden."

II. DISCUSSION

Defendant claims the police thwarted his constitutional right of access to his lawyer by rebuffing retained counsel's efforts to see him and by failing to inform him that the attorney was at the station seeking to consult with him. A majority of courts have so held on similar facts. These authorities conclude that when the police intentionally separate a suspect under interrogation from his lawyer who is trying to reach him, they interfere with the attorney- client relationship and directly breach the constitutional right to the assistance of retained or appointed counsel at all critical stages of a criminal prosecution. Further, the cases suggest, such tactics violate Miranda's premise that access to counsel during a custodial interrogation, unless freely and knowingly waived, is a necessary adjunct to the privilege against self-incrimination.

In May 1964, the United States Supreme Court first concluded that the Sixth Amendment right to counsel extended to "critical" pretrial phases of a criminal proceeding. (Massiah v. United States (1964) 377 U.S. 201, 204-206, 84 S.Ct. 1199, 1201-1203, 12 L.Ed.2d 246.) A month later, the court decided that police violated the right to counsel when they denied the request of a suspect under "accusatory" interrogation to consult with a retained lawyer who had come to the station to see him. (Escobedo v. Illinois (1964) 378 U.S. 478, 486-492, 84 S.Ct. 1758, 1762-1766, 12 L.Ed.2d 977.) Even though criminal charges had not yet been filed, the court noted, the police had interfered with defendant's access to his counsel " 'at the only stage where legal aid and advice could help him.' " (Id., at pp. 484-485, 84 S.Ct. at pp. 1761-1762, quoting Massiah, supra, 377 U.S. at p. 204, 84 S.Ct. at p. 1202, which in turn quoted Spano v. New York (1959) 360 U.S. 315, 326, 79 S.Ct 1202, 1209, 3 L.Ed.2d 1265 [conc. opn. of Douglas, J.].) Though the high court limited Escobedo to its facts, this court quickly applied its reasoning to conclude that the Sixth Amendment required the police to advise a yet-uncharged suspect under "accusatory" interrogation of his right to a lawyer, appointed if necessary. (People v. Dorado (1965) 62 Cal.2d 338, 353-354, 42 Cal.Rptr. 169, 398 P.2d 361.)

Shortly after Dorado was decided, the United States Supreme Court issued its landmark decision in Miranda. There the court ruled that an absolute right of access to counsel during an "inherently coercive" custodial interrogation is "indispensable" to protection of the Fifth Amendment privilege against self-incrimination. (384 U.S. at pp. 468-469, 86 S.Ct. at pp. 1624-1625.) Miranda reasoned that the lawyer's presence reinforces for the accused his right to silence in a way that formalistic warnings by adversary interrogators cannot. (Id., at p. 470, 86 S.Ct. at p. 1625.) It assures him informed advice on whether to waive or exercise the privilege of silence. See Fare v. Michael C. (1979) 442 U.S. 707, 719, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197, rehg. den., 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121.) And it minimizes the possibility that any subsequent confession will be involuntary, untrustworthy, or inaccurately reported at trial. (Miranda, supra, 384 U.S. at p. 470, 86 S.Ct. at p. 1625, see also Michael C., supra, 442 U.S. at p. 719, 99 S.Ct. at 2568.)

Because of the attorney's "unique" and "critical" role during custodial questioning (Michael C., supra), Miranda required "fully effective means" of ensuring the suspect's right of access to counsel. The authorities must advise the individual before questioning of the rights to silence and to counsel, appointed if necessary. (384 U.S. at pp. 444, 471-473, 86 S.Ct. at pp. 1612, 1626-1627.) Even if the suspect expressly waives these rights, as he must before questioning can proceed without counsel, he must be assured "a continuous opportunity" to invoke or reinvoke them.

Thus "[i]f ... he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no [further] questioning" until a lawyer is provided. (Id., at pp. 444-445, 86 S.Ct. at pp. 1612-1613, italics added; Edwards v. Arizona (1981) 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378, rehg. den., 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984.) "Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." (Miranda, supra, 384 U.S. at p. 474, 86 S.Ct. at p. 1628.)

No statement obtained during a custodial interrogation is admissible unless the rights to silence and counsel were waived "voluntarily, knowingly, and intelligently." (Id., at p. 444, 86 S.Ct. at p. 1612; see Escobedo, supra, 378 U.S. at p. 490, fn. 14, 84 S.Ct. at p. 1765, fn. 14; ...