State v. Moulds

Decision Date06 December 1983
Docket NumberNo. 14708,14708
PartiesSTATE of Idaho, Plaintiff-Appellant, v. Michael W. MOULDS, Defendant-Respondent.
CourtIdaho Court of Appeals

Jim Jones, Atty. Gen., by Lynn E. Thomas, Sol. Gen., and Dennis Johnson, Spec. Atty. Gen., Boise, for appellant.

Klaus Wiebe, Ada County Public Defender, Boise, for respondent. BURNETT, Judge.

Michael Moulds stands accused of theft, burglary and robbery. The district court has entered a suppression order, barring the prosecutor from using as evidence at trial certain statements made by Moulds to police officers during a custodial interrogation. The court held that the statements had been obtained in violation of Moulds' constitutional right to have counsel present during the interrogation. The State of Idaho has appealed, contending that police interrogators are not required to honor a request for counsel unless the request is made unequivocally. The State also asserts that police communications with the accused in this case did not constitute "interrogation." We reject both of these contentions and affirm the suppression order.

In Part I of this opinion, we outline the constitutional origin and the scope of an accused person's right to have counsel present during a custodial police interrogation. We explain how procedural safeguards of these rights have evolved into per se tests of the admissibility into evidence of statements obtained from the accused. In Part II we examine the problem posed by an equivocal request for counsel. We adopt a legal standard governing the police response to such a request, and we apply that standard to the case before us. In Part III we focus on the meaning of the term "interrogation" and apply it to the police communications at issue here.

I

Our system of government, unlike many others, is founded upon the protection of individual liberties. The United States Constitution was not ratified until it had been broadened to include the first ten amendments comprising the Bill of Rights. The Idaho Constitution undertakes in its first article not to proclaim the powers of government, but to declare the rights of individuals. Among the liberties protected by both constitutions are the privilege against self-incrimination and the right to counsel in criminal cases. The fifth amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." The sixth amendment provides that an accused person shall "have the assistance of counsel for his defense." Similar rights are secured by art. I, § 13, of the Idaho Constitution.

Our attention today is directed toward the federal constitutional guarantees. 1 The fifth amendment right to silence and the sixth amendment right to counsel are applicable to the states as elements of due process under the fourteenth amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). These rights, like all constitutional liberties, possess only the life our courts breathe into them. The courts are charged with protecting individual rights against infringement by government authorities. This is seldom a popular task, and never an easy one.

A

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court confronted a potential threat to fifth and sixth amendment values posed by custodial police interrogations. It long had been understood that the government might render ineffective an accused person's right to remain silent at trial, or to have the assistance of counsel, if he were induced to make incriminating pretrial statements which the government later could use against him during the trial. Federal courts often were asked to review the voluntariness of such pretrial statements. During the thirty years immediately preceding Miranda, the Supreme Court handed down more than thirty opinions addressing the question of voluntariness in various contexts. See generally Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 MICH.L.REV. 59, 102 n. 184 (1966). The issues in these cases ranged from contentions of physical coercion to allegations of psychological duress in custodial settings.

During this pre-Miranda period, the focus of the sixth amendment cases also was broadened. The right to assistance of counsel at trial had been recognized in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Supreme Court extended this right to police interrogation following indictment. The Court noted that such interrogation was a critical phase of the criminal justice process. The Court held that no statement obtained during a post-indictment interrogation without an attorney could be used at trial unless the accused person had waived his right to counsel. The Court further extended this right to the pre-indictment phase in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In that case the accused, while under arrest and in custody, had been denied access to his lawyer during a police interrogation.

Thus, when Miranda was argued in 1966, the Supreme Court's attention had been drawn repeatedly to the importance of early assistance of counsel and to concerns about the voluntariness of statements procured during police interrogations. The stage was set for a major decision, integrating the fifth and sixth amendment rights of accused persons facing interrogation while in police custody.

The Supreme Court's opinion in Miranda framed the fifth amendment issue by noting that some compulsion is "inherent in custodial surroundings." 384 U.S. at 458, 86 S.Ct. at 1619. The Court acknowledged the view, advocated in some quarters, that all statements obtained during pretrial custodial interrogations should be barred from use at trial. But the Court eschewed this extreme position. It followed a more moderate course, establishing new procedural safeguards to lessen the compulsive aspects of custodial interrogations. The Court held that the government may not use at trial statements obtained from the accused during a custodial interrogation unless the police have informed him of his right to silence and have afforded him a continuous opportunity to exercise that right. Moreover, to secure the right to silence, the Court enlarged the right to counsel under the sixth amendment by weaving it into the fabric of the fifth amendment. The Court said that "the right to have counsel present at the interrogation is indispensable to the protection of the fifth amendment privilege under the system we delineate today." 384 U.S. at 469, 86 S.Ct. at 1625. The Court included in its new procedural safeguards a requirement that the police inform the accused, at the outset of any interrogation, that he has the right to the presence of an attorney, either retained or appointed.

The Court further held that the accused person could invoke his right to have counsel present, by indicating "in any manner and at any stage of the process" that he desired to consult an attorney. 384 U.S. at 444-45, 86 S.Ct. at 1612-13. In that event, the Court said that "the interrogation must cease.... If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." 384 U.S. at 474-75, 86 S.Ct. at 1627-28.

Miranda was both hailed and condemned as a landmark decision. But it actually suffered from a fundamental ambiguity. The opinion did not say precisely whether its procedural requirements--that an accused person be advised of his right to silence and right to counsel, and that the police honor these rights when invoked--created a new per se test for admission into evidence of incriminating pretrial statements, or simply represented additional guidelines for determining the voluntariness of such statements. Advocates of the per se view pointed to language in the opinion declaring that the government could not use statements at trial obtained from the accused in a pretrial custodial interrogation unless the procedural safeguards had been followed. Opponents of the per se view took comfort in language stating that if an interrogation were continued after the right to counsel had been invoked, the incriminating statements later obtained might still be used at trial if the government sustained its burden of demonstrating that the defendant knowingly and intelligently had waived his right. Echoes of that debate are still audible in the case now before us. To understand the outcome of the debate, we must follow the odyssey of Miranda through later Supreme Court decisions.

B

Miranda 's early offspring seemed to discourage the per se view. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court held that statements elicited from a defendant without full compliance with the Miranda safeguards could be used to impeach the defendant's credibility if he testified at trial. In Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the Court held that violation of Miranda safeguards would not preclude the prosecution from using a "fruit" of the custodial interrogation--testimony by a witness whose identity had been learned during the interrogation. In both Harris and Tucker, the Supreme Court characterized the defendants' statements as voluntary, even though obtained during interrogations which did not conform to the Miranda safeguards. The Court indicated that these safeguards were not constitutional commands but simply prophylactic measures adopted to secure the right to silence and the...

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