State v. Mendes, 10590

• Decision Date: 10 May 1965
• Docket Number: No. 10590,10590
• Parties: STATE v. Manuel MENDES. Ex.
• Court: Rhode Island Supreme Court

Page 50

210 A.2d 50

99 R.I. 606

STATE v. Manuel MENDES.

Ex. No. 10590.

Supreme Court of Rhode Island.

May 10, 1965.

J. Joseph Nugent, Atty. Gen., Francis A. Kelleher, Asst. Atty. Gen., for the State.

Dick & Carty, Joseph B. Carty, Providence, for defendant. PAOLINO, Justice.

This is an indictment charging the defendant with driving so as to endanger, death resulting, in violation of G.L.1956, § 31-27-1. It was tried before a justice of the superior court sitting with a jury and resulted in a verdict of guilty. The case is here on the defendant's bill of exceptions to the denial of his motion for a new trial and to certain rulings during the trial. Additionally, the parties have briefed and argued certain constitutional questions which were not raised in the superior court, namely, the effect of our recent decision in State v. Dufour, R.I., 206 A.2d 82, on the admissibility of the defendant's incriminating statement. We hold that Dufour applies here.

The instant case was tried in the superior court in May 1963. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, was decided on June 22, 1964. People v. Dorado, Cal., 40 Cal.Rptr. 264, 394 P.2d 952, was decided on August 31, 1964. A rehearing was granted in Dorado and the decision therein was filed on January 29, 1965. See People v. Dorado, Cal., 42 Cal.Rptr. 169, 398 P.2d 361. The decision in State v. Dufour, supra, filed January 8, 1965, contains the following holdings:

'In Escobedo the defendant requested the assistance of counsel and was refused. In this respect that case differs from the case at bar but in the course of its opinion the supreme court made it clear, we think, that the defendant in such circumstances must not only have been advised of his right to assistance of counsel when requested but he must also have been warned of his right to remain silent. 'We hold, therefore,' the court said, 'that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. , at 342, 83 S.Ct. , at 795 and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.'

'Our view of the thrust of Escobedo has recently been applied by the California supreme court in People v. Dorado, Cal., 40 Cal.Rptr. 264, 394 P.2d 952. In that case as in our case the defendant failed to request counsel but the court was of the opinion that this did not distinguish the case from Escobedo saying: 'We find no strength in an artificial requirement that a defendant must specifically request counsel; the test must be a substantive one: whether or not the point of necessary protection for guidance of counsel has been reached.'

'In Escobedo the point of such necessary protection was reached in the opinion of the supreme court when the investigation began to focus on a particular suspect then in police custody. This was unquestionably the situation of defendant in the case at bar. For this reason his confession was inadmissible and should have been suppressed.'

The state contends that the case at bar is not governed by Dufour because the cases are materially different factually. It points out that in Dufour the confession was held invalid in connection with the defendant's motion to suppress the evidence whereas in this case no objection was made by defense counsel to the voluntariness and introduction of defendant's statement. The state further contends that since defendant made no issue of the manner or circumstances in which defendant's statement was obtained, there was a waiver by counsel of any irregularities which existed when the statement was obtained by the police. Finally, the state argues that in any event the introduction of defendant's statement, if error, constituted harmless error because of other overwhelming evidence in the record pointing to defendant's guilt.

On the contrary defendant argues that Escobedo, as applied by the holding in Dufour, is applicable in this case. He contends that the failure of the police to advise him of his rights to remain silent and to have assistance of counsel at the time when the investigation became accusatory violated basic constitutional rights of due process and that his statement was not admissible, even though not objected to by his counsel.

In the posture in which this case is now presented, it is apparent that it must be decided in the light of events which occurred after the fatal accident and after defendant's arrest. For this reason the details of the accident need be summarized only briefly. We shall refer chiefly to evidence surrounding defendant's statement to the police.

Shortly before 10 p. m. on August 18, 1962 defendant was operating his automobile in a northerly direction on Pawtucket avenue in the city of East Providence. At approximately the same time and place Suzanne M. Magsamen was operating a motor vehicle in a southerly direction along the same highway. The vehicles collided with each other causing fatal injuries to Suzanne M. Magsamen. She was pronounced dead upon arrival at the hospital immediately after the accident.

When the police arrived at the scene of the accident, defendant was still behind the steering wheel of his car. Upon observing that he had been drinking, he was taken by the police to the East Providence police station. Shortly after his arrival there he was examined by a police surgeon and pronounced under the influence of intoxicating liquor. He was informed of his right under § 31-27-3 to be examined by a physician of his own choice. See State v. Lefebvre, 78 R.I. 259, 81 A.2d 348. He was also given the opportunity to use the telephone. It appears from the evidence that because of his condition no further questioning took place that night. He was kept in custody at the police station all night.

On the following morning, August 19, 1962, after being told that the operator of the other auto had died, defendant was interrogated by members of the East Providence police department about the accident. The questions and his answers, which contained incriminating matter, were reduced to a statement in writing and signed by him in the presence of three police officers who signed as witnesses. He was charged with two separate offenses, driving under the influence of intoxicating liquor in violation of § 31-27-2, and driving so as to endanger, death resulting, in violation of § 31-27-1. He was subsequently indicted for the latter violation.

This case involves only the indictment. The § 31-27-2 violation was pending in the superior court at the time of the trial. The defendant did not testify in his own behalf and he presented no witnesses. Although there were no eyewitnesses the state presented an engineering sketch of the area and also numerous photographs taken at the scene of the accident showing the highway and the position of the cars after the accident. In substance the state's evidence indicated that defendant's car had been seen operating in an erratic manner just prior to the accident; that the weather was clear and the highway was well illuminated; and that the actual impact occurred on the westerly side of the road, thus showing that defendant had driven onto the path of decedent's car on her side of the highway.

The statement was introduced in evidence in the superior court without objection. Indeed, defendant's counsel expressly stated in open court that he had no objection to its introduction. No claim was made then, and none is made now, that any coercion, intimidation, threats, or promises of any kind were made by the police to elicit the statement from defendant. The voluntariness of its has never been put in issue, either in the superior court or here. The uncontradicted evidence by the police is that before signing it defendant read it and in fact made corrections which appear thereon.

Notwithstanding the totality of circumstances showing absence of involuntariness, coercion, threats, promises, or intimidation, the question remains, did the failure of the police to advise defendant of his constitutional rights to remain silent and to assistance of counsel vitiate the statement and render it inadmissible?

We summarize the essential facts. There is no evidence indicating that defendant sought or was denied counsel; nor is there any evidence or claim that he was advised of his basic rights to remain silent and to have the assistance of counsel when the general inquiry in this matter focused on him in an accusatory investigation while in custody of the police. With respect to the offense charged in this indictment, 'the point of necessary protection for guidance of counsel' occurred when defendant learned of the death of the driver of the other car. On the morning of the interrogation in the police station, defendant had become the accused with respect to the § 31-27-1 charge, and the purpose of the interrogation was to elicit incriminating information from him about the fatal accident.

We are now faced squarely with the question whether the doctrine of Escobedo should be applied, as was done in People v. Dorado, Cal., 40 Cal.Rptr. 264, 394 P.2d 952, and in the holding in State v. Dufour, supra, or whether it should be limited to its own facts and circumstances as was done in Mefford v. State, 235 Md. 497, 201 A.2d 824, and State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448.

We...