State v. Carter

• Decision Date: 27 November 1995
• Citation: 664 So.2d 367
• Parties: 94-2859 La
• Court: Louisiana Supreme Court

Page 367

664 So.2d 367

94-2859 La. 11/27/95

STATE of Louisiana v. Oscar CARTER.

No. 94-KK-2859.

Supreme Court of Louisiana.

Nov. 27, 1995.

Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Gregory Garth Hangartner, New Orleans, for Applicant.

Kevin Vincent Boshea, New Orleans, for Respondent.

[94-2859 La. 1] KIMBALL, Justice. ^*

ISSUE

We granted this writ application to determine whether defendant's right to counsel under either the federal or state constitutions was violated when a police officer interrogated defendant in jail, without the presence of an attorney, after defendant had been arrested and had made an initial appearance before a magistrate for the purposes of setting bond and appointment of counsel. We hold that where a defendant's federal and state constitutional right to counsel has attached, but where defendant has not asserted or invoked the right which had attached, he may validly waive his right to counsel during an interrogation provided the waiver is knowing, intelligent and voluntary. Because we find the defendant in the instant case in fact did not invoke or assert his right to counsel and subsequently made a valid waiver, we decline to revisit the issue of whether or not the right to counsel attaches at the initial appearance, as was [94-2859 La. 2] previously held in State v. Hattaway, 621 So.2d 796 (La.1993). For purposes of this opinion, we assume arguendo that it does.

FACTS

On February 10, 1994, defendant was arrested pursuant to a warrant for a rape and battery alleged to have occurred the night before. On February 11, 1994, defendant appeared in Magistrate Court for the Parish of Orleans for an initial appearance, where bond was set. Defendant could not make bail. At the appearance, the judge also appointed the public defender to represent defendant. On February 13, 1994, the arresting officer, Officer Dickerson, met with defendant in jail, advised him of his rights, and asked if he wanted to make a statement. Defendant said he did and that he understood his rights. He signed a "Rights of Arrestee Waiver Form" which included the right to remain silent and the right to have an attorney present during questioning, and which notified defendant that any statements he might make could be used against him at trial. Defendant thereafter made a statement.

The trial judge later denied defendant's motion to suppress this statement. The fourth circuit court of appeal granted defendant's writ application and summarily reversed, stating: "Under State v. Hattaway, 621 So.2d 796 (La.1993) the State violated relator's constitutional right to counsel when it interrogated him following institution of adverse judicial criminal proceedings without first contacting his lawyer. Accordingly, we reverse the trial court's denial of relator's motion to suppress the confession. This matter is remanded to the trial court for further proceedings consistent with this ruling." ¹ We granted the state's writ application seeking review of this decision. ²

THE LAW

This court in State v. Hattaway, supra, addressed several of the issues involved in this case. However, because we find the conclusions expressed therein on the above issues to have been based on a partial misapprehension of federal constitutional law in this area, we herein overrule it to that extent. Furthermore, inasmuch as the meaning of the right to counsel under [94-2859 La. 3] La. Const. Art. 1, Sec. 13 in Hattaway was based almost entirely on that erroneous interpretation of federal law, we herein revisit in part the meaning and extent of the right to counsel under that constitutional article, concluding that on the issues of when the right attaches, at what subsequent stages does it exist, and whether it can be waived, the right to counsel under the Sixth Amendment and the right to counsel under La. Const. Art. I, Sec. 13 are coextensive in scope, operation, and application.

A. State v. Hattaway:

In Hattaway, this court held:

Article I, Sec. 13 of our state constitution guarantees the accused, at least after the initiation of adverse judicial criminal proceedings and the court's appointment of an attorney to assist him, the right to rely on counsel as the medium between himself and the state. Consequently, the state cannot, under such circumstances, obtain a waiver from the accused or otherwise communicate with him with respect to the offense that is the subject of the proceedings except through the medium of the defense counsel.

Hattaway, 621 So.2d at 798.

The court first held that a person's right to the assistance of counsel guaranteed by La. Const. Art. I, Sec. 13 attaches no later than a defendant's initial court appearance or first judicial hearing. This conclusion was based on the fact that at the time of the drafting and ratification of the 1974 Louisiana Constitution,

Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ] had constitutionalized an indigent's right to court-appointed counsel in state trials, Kirby v. Illinois [406 U.S. 682, 32 L.Ed.2d 411 (1972) ] had fixed the attachment of the Sixth Amendment right to counsel at the initiation of accusatory or adverse judicial criminal proceedings, and the Louisiana legislature, by enacting La.C.Cr.P. art. 230.1, had established the initial court appearance or first judicial hearing to demarcate investigation and accusation, provide for the initiation of adverse judicial criminal proceedings, and fix the time for the appointment of counsel to assist indigents.

Hattaway, 621 So.2d at 808.

The court then noted that upon the attachment of the right to counsel, not all activity involving the defendant thereafter will constitute a "critical stage" or a "stage of the proceedings" triggering the right to presence of counsel at such a stage. Finding no evidence in the text or the drafting history of Art. I, Sec. 13 to indicate an intent to deviate from the Sixth Amendment test on what constitutes a "critical stage", this court looked to United States Supreme Court Sixth Amendment jurisprudence and adopted a "functional test" to determine at [94-2859 La. 4] which stages after the attachment of the right to counsel under Art. I, Sec. 13 the accused would be entitled to the assistance of counsel. This determination involves an analysis of "whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice" and includes "any pretrial procedure occurring after the attachment of the right to counsel in which a meaningful defense or a fair trial could potentially be impaired if an uncounselled defendant were subjected to a confrontation by the state." Hattaway, 621 So.2d at 802 and 809. Therefore, even though the literal language of Art. I, Sec. 13 gives a defendant the right to counsel at "each stage of the proceedings", this court interpreted that phrase to include only those stages occurring after the attachment of the right to counsel which would be considered "critical stages" under the Sixth Amendment to the United States Constitution.

The Hattaway court then addressed whether a defendant, after his right to counsel had attached, could waive the right to have counsel present at a critical stage. This court concluded that once the right to counsel had attached and "been asserted by the enrollment or appointment of counsel ... [no] state agent[ ] [could] communicate directly with the accused, without the knowledge and consent of his counsel, regarding the offense which is the subject of the adverse judicial criminal proceedings," and that any waiver of the right to counsel by defendant in such a case is per se invalid. Id. at 814. In essence, this court held that once the right to counsel had attached and an attorney had either been requested by defendant, or appointed for defendant, there could never be a valid waiver of the right to counsel by defendant. This conclusion was based on several considerations. Most importantly, this court found that the "text and history of Article I, Sec. 13 exhibit no intent to dilute the strictness of the standards previously established by the Supreme Court's Sixth Amendment jurisprudence governing the waiver of the right to assistance of counsel." Id. at 810. Therefore, after a review of what purported to be the relevant jurisprudence on the subject, the court concluded the United States Supreme Court had established "strong precedent" that "the state is prohibited from communicating with the defendant about the subject of the proceedings except through his legal representative, regardless of who initiated the confrontation or whether the elicitation was overt or covert." Id. at 809.

[94-2859 La. 5] B. Analysis of Hattaway

and Sixth Amendment Jurisprudence:

Because the conclusions in Hattaway were based in large part on a misapprehension of United States Supreme Court jurisprudence, we begin our analysis by reviewing the applicable federal jurisprudence concerning when the Sixth Amendment right to counsel attaches, at what subsequent stages it applies, and whether it can be waived. Thereafter, we will address whether the right to counsel protected under La. Const. Art. I, Sec. 13 differs from the Sixth Amendment right to counsel on these issues and, if so, consequently warrants a different result in this case.

1. The Initiation of Adversary Judicial Proceedings and Subsequent Critical Stages

As correctly noted in Hattaway, the Sixth Amendment right to counsel attaches only after the commencement of adverse judicial criminal proceedings. In the plurality opinion of Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), the Supreme Court held the right to counsel does not attach prior to the "initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." In an oft-quoted passage, the Court...