State v. McConico

• Decision Date: 29 February 1980
• Docket Number: No. 51117,51117
• Citation: 607 P.2d 93,4 Kan.App.2d 420
• Parties: STATE of Kansas, Appellee, v. Shelly R. McCONICO, Appellant.
• Court: Kansas Court of Appeals

Page 93

607 P.2d 93

4 Kan.App.2d 420

STATE of Kansas, Appellee, v. Shelly R. McCONICO, Appellant.

No. 51117.

Court of Appeals of Kansas.

Feb. 29, 1980.

Syllabus by the Court

In a criminal action where the admissibility of a statement obtained by custodial interrogation is challenged it is held the Miranda right to counsel may be waived.

N. Trip Shawver, Wichita, for appellant.

Neal B. Brady, Asst. Dist. Atty., Wichita, Vern Miller, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before REES, P. J., and SPENCER and MEYER, JJ.

REES, Judge:

Defendant Shelly R. McConico appeals her conviction of felony theft (K.S.A. 1979 Supp. 21-3701(a )). Prior to trial, defendant unsuccessfully sought suppression of an inculpatory statement. The sole question on appeal is whether suppression was erroneously denied.

On December 7, 1978, defendant was arrested and taken into custody upon an unrelated charge referred to in the record as "petty larceny." Her problems seem to have almost immediately mushroomed to include another unrelated charge of parole violation. The day after her arrest until her first appearance (see K.S.A. 22-2901) in the present proceeding on December 14, defendant remained in the Sedgwick County jail and had no contact with or advice of counsel. At no time during this period was she taken before a judge.

It is uncontroverted that defendant had no retained counsel, at all material times was indigent, and that on December 9 she made a written request to jail personnel "for a lawyer" to obtain legal advice. Her request went unheeded. No attorney was provided for defendant until appointment of her present counsel on December 15, the day after her first appearance.

At approximately 10:00 a. m. on the morning of December 13, Wichita Police Detective Burnett met with defendant at the jail to question her concerning a December 7 theft of $150 cash from a Wichita filling station, the crime of which she now stands convicted. This was the first questioning of defendant concerning this theft. Burnett completed a personal history questionnaire from information provided by defendant in response to his inquiries. He then orally gave her the Miranda warning, advising her of her rights by reading from a printed form. Defendant initialed and signed the form acknowledging she understood her rights and was willing to be questioned. When Burnett began his interrogation, defendant said she would like to first consult a lawyer. Burnett immediately terminated the interview, cut off the questioning.

On the afternoon of December 13, some three and one-half hours after his previous session with defendant, Burnett received word from jail personnel that defendant wished to speak with him. At about 2:00 p. m. Burnett met with her. He gave defendant a fresh Miranda warning by orally reading to her the printed form language. Defendant initialed and signed this second form acknowledging she understood her rights and was willing to be questioned. The record does not reflect she stated she did not want a lawyer. Defendant told Burnett the reason she wanted to talk was so she could get out on bond and see her children. Defendant was questioned and made an oral confession of the filling station theft. Based on her statement, on December 14 a combined complaint and information was filed and defendant was taken before an associate district judge, acting as a magistrate, for her first appearance (see State v. Taylor, 3 Kan.App.2d 316, 318, 594 P.2d 262 (1979)).

From his interrogation, Burnett learned defendant had committed the theft to obtain money for drugs. There is no evidence indicating the frequency or nature of defendant's drug use. Neither is there evidence defendant's appearance, conduct or speech disclosed drug use or withdrawal signs at any time now pertinent. Burnett testified there were no threats, coercion, or physical force; defendant appeared to understand the questions asked and responded with logical answers. There is no contention defendant is mentally incompetent or did not understand her rights, or that apart from the issue she now raises, her answers to Detective Burnett's interrogation did not constitute a voluntary statement.

On appeal, defendant claims she was deprived of her Fifth Amendment right against self-incrimination and her Sixth Amendment right to counsel. She urges us to adopt the rule that once a person has requested an attorney, under no circumstances may that person be subjected to custodial interrogation without an attorney present or prior consultation with an attorney.

In support of her contention, defendant cites People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539 (1968), for the following rule:

"Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel . . .."

Defendant also refers to the following language of Miranda v. Arizona, 384 U.S. 436, 444-445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), as supportive of her position:

"Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, 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 questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him." (Emphasis added.)

We find defendant's argument not persuasive.

The New York Arthur rule, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, has been followed by a few courts but rejected by others. State v. Smith, 294 N.C. 365, 375, 241 S.E.2d 674 (1978). Even if it might be said our Supreme Court has not already done so, we need not now decide which we should do.

The Arthur language relied upon by defendant is lifted out of context. Further, even if we were to follow the Arthur rule, facts necessary to trigger the invocation of the rule do not exist in this case.

The penultimate statement preceding the cited language of Arthur is:

"Thus, the principle which may be derived from these pre-Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) cases is that, once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant, the accused's right to counsel attaches; and this right is not dependent upon the existence of a formal retainer." (Emphasis added.) 22 N.Y.2d at 329, 292 N.Y.S.2d at 666, 239 N.E.2d at 539.

In State v. Smith, 294 N.C. at 374-375, 241 S.E.2d at 680, the North Carolina Supreme Court has aptly observed:

"(The Arthur ) rule was succinctly stated in People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.2d 419, 420, 348 N.E.2d 894, 896 (1976), as follows: 'Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer . . . . Any statements elicited by an agent of the State, however subtly, after a purported "waiver" obtained without the presence or assistance of counsel, are inadmissible.'

"We also note that in Hobson the court was careful to point out that 'the rule of the Arthur case is not an absolute. Thus, the fact that a defendant is represented by counsel in a proceeding unrelated to the charges under investigation is not sufficient to invoke the rule.' 39 N.Y.2d at 483, 384 N.Y.S.2d at 422, 348 N.E.2d at 897.

"The Arthur rule, that a defendant in custody who is represented by counsel may not waive his constitutional rights in counsel's absence, is not the law in this State. (Citations omitted.) Further, as the New York Court of Appeals freely conceded in Hobson, 39 N.Y.2d at 483-84, 384 N.Y.S.2d at 422, 348 N.E.2d at 897-98, the rule of Arthur extended a defendant protection under the State constitution beyond that afforded by the Federal Constitution as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)."

At the time of defendant's interrogation on the afternoon of December 13, she had no retained counsel nor had there been volunteered or appointed appearance of an attorney in regard to the investigation of the December 7 filling station theft. There had been no "entry of an attorney into the proceeding."

Defendant's proposed application of Miranda is too broad. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), it was held a statement disclosing participation in a homicide obtained as the product of custodial interrogation was admissible where at an earlier interrogation concerning two robberies, crimes different in nature and in time and place of occurrence from the homicide, defendant's invocation of his right to silence, to cut off questioning, was scrupulously honored. The incriminating statement was the result of a later police initiated interrogation focused on the homicide, conducted more than two hours after the earlier interrogation, and following a fresh Miranda warning at the outset. The opinion expressly observes:

"This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed...