State v. Hackman
| Decision Date | 13 May 1997 |
| Docket Number | No. 1CA-CR,1CA-CR |
| Citation | 943 P.2d 865,189 Ariz. 505 |
| Parties | , 243 Ariz. Adv. Rep. 3 STATE of Arizona, Appellant, v. Daniel Weldon HACKMAN, Appellee. 96-0581. |
| Court | Arizona Court of Appeals |
The state appeals from the trial court's order granting the motion of Daniel Hackman ("defendant") to suppress the testimony of Calvin Graeb. The court found that a violation of the defendant's Sixth Amendment right to counsel necessitated its action. We conclude that the independent-source doctrine is applicable to certain information procured by the prosecution. Accordingly and for the reasons which follow, we affirm in part and reverse in part the judgment of the court.
A woman reported that she had been sexually assaulted by her former boyfriend, the defendant. The defendant was arrested and taken to the Show Low Police Department, from where he was booked into the Navajo County Jail and his personal possessions secured in a property bag. After being advised of his rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant signed a waiver and participated in a videotaped interview with Detective Kim Brewer. In his interview, the defendant admitted the conduct reported by the victim but insisted that she had telephoned him at his friend's house in Phoenix and invited him to her home to engage in the various acts of which she later complained.
The defendant also told Detective Brewer that his friend, Calvin Graeb, could confirm the victim's telephone call to the defendant because he had overheard the defendant on the telephone making such statements as "Oh, you want me to come up." The defendant added that Graeb resided in the Phoenix area and that Graeb's telephone number was located in his property held at the jail.
The defendant was indicted and the public defender appointed to represent him. Before trial, the state's investigator, Jim Currier, was assigned to obtain Graeb's telephone number from the defendant's jail property and to contact Graeb to determine if he had any information regarding the defendant's activities on the night in question, the alleged telephone conversation between the defendant and the victim, and the defendant's relationship with the victim.
Currier reviewed the state's file, including the defendant's videotaped interview. He then drafted a warrant, later signed by a magistrate, to search the defendant's property bag at the jail for Graeb's telephone number. Specifically requested was a search to find any documents regarding a telephone number in the metropolitan Phoenix area for Calvin Graeb.
Currier personally served the warrant on the defendant, who still was in custody. He did not notify defense counsel. At the time of service, Currier asked the defendant the location of Graeb's telephone number and he also elicited additional statements from the defendant. Currier told the defendant that, if Graeb was contacted, Graeb's testimony would assist the defendant in his case. The defendant told Currier that Graeb's number was in his checkbook in his property bag. From this bag, Currier retrieved the defendant's checkbook; Graeb's telephone number was written on a slip of paper located inside.
Subsequently, based upon a violation of his Sixth Amendment right to counsel, the defendant moved to suppress any information obtained by the state as a result of Currier's contact with him. 1 The trial court granted the motion and ordered all of the defendant's statements to Currier and information obtained therefrom suppressed, including Graeb's telephone number. However, the court also ruled that Graeb's name and other information regarding Graeb previously obtained by Detective Brewer need not be suppressed. Reconsideration of the order was denied. The state's motion to dismiss the case without prejudice was granted and the state appealed. ARIZ.REV.STAT.ANN. § 13-4032.
The state argues that the trial court erred when it barred Graeb as a witness because, although there was a violation of the defendant's right to counsel, there was an independent source for the information and the discovery of his telephone number was inevitable. Given the violation of the defendant's constitutional right, we determine whether the information need be suppressed in accord with the exclusionary rule.
Currier testified that he was directed to obtain the telephone number of Graeb, a potential witness. Despite the fact that the execution of the warrant could be made by serving the jailer rather than the defendant personally, Currier opted to make personal service of the warrant on the defendant. He said that personal service was a "practice" he tried "to advocate" because, "[I]deally, if [he] was going to search someone's personal property and if they were available, [he] would like to let them know that is what [he was] doing, that is why [he was] doing it." Currier informed the defendant that he had a search warrant for his personal property and asked the defendant if he would assist him in locating Graeb's telephone number.
The defendant told Currier that the telephone number could be found in his checkbook in his property bag. According to Currier, the defendant spontaneously added that telephoning Graeb would do Currier no good because Graeb was out of the country. Currier replied "fine" but told the defendant that the telephone number would assist him in locating Graeb and that Graeb could assist the defendant in defending his case.
Currier admitted that, when he spoke with the defendant, he knew that the defendant had counsel and that the public defender's office had its own investigator. Currier further conceded that the defendant appeared somewhat upset, even irate, during their talk and added that he ended the exchange because he did not want to become involved in a conversation about the case. He then obtained the defendant's property bag, took the checkbook out of it and removed a piece of paper with telephone numbers, including that of Graeb, written on it.
... The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a "medium" between him and the State. As noted above, this guarantee includes the State's affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right.... [T]he 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.
Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985) (footnote omitted), Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The state, as it recognizes, violated the defendant's Sixth Amendment right when Currier questioned the defendant without his attorney being advised and either present or agreeable to contact with the defendant without counsel.
Currier's service of the search warrant on the defendant and resulting conversation without defense counsel's knowledge and acquiescence cannot be pardoned. The reason given by the state as to why Currier spoke with the defendant without first contacting his attorney was that Currier wanted to be "upfront with everyone." Given the clear mandate from the Supreme Court condemning contact with a defendant without the cognizance of his attorney because of the obvious potential prejudice to the defendant's exercise of his constitutional rights, this rationale is completely unsatisfactory. The trial court properly excluded all statements made by the defendant to Currier. When a state agent like Currier chooses to violate a defendant's Sixth Amendment rights in order to gather additional information, he "must be prepared to live with the consequences of that decision." United States v. Kimball, 884 F.2d 1274, 1280 (9th Cir.1989).
We now review the trial court's decision regarding how much of the knowledge obtained by the state must be suppressed. 2 The defendant argues that all of the information gained from the statements elicited by Currier must be stricken as the "fruits of the poisonous tree" under the exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963).
The exclusionary rule requires the suppression at trial of evidence gained directly or indirectly as a result of a government violation of the Fourth, Fifth or Sixth Amendments. Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988). 3 "[T]he appropriate remedy for a violation of Massiah includes not only suppression of all evidence directly obtained through governmental misconduct, but also suppression of all evidence that can properly be designated fruits of that conduct." Kimball, 884 F.2d at 1278-79; see also State v. Bravo, 158 Ariz. 364, 374-76, 762 P.2d 1318, 1328-30 (1988), cert. denied, 490 U.S. 1039, 109 S.Ct. 1942, 104 L.Ed.2d 413 (1989).
However, concurrently with the exclusionary rule there developed what has become known as "the independent-source doctrine." It was first enunciated in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920):
The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course...
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