State v. Waggoner
| Decision Date | 04 October 1993 |
| Docket Number | No. 19598,19598 |
| Citation | 864 P.2d 162,124 Idaho 716 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Vincent Randolph WAGGONER, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Manweiler, Bevis & Cameron, P.A., Boise, for defendant-appellant. David D. Manweiler argued.
Larry EchoHawk, Atty. Gen., and Michael A. Henderson, argued, Deputy Atty. Gen., for plaintiff-respondent.
Vincent Waggoner was found guilty by a jury of aiding and abetting a robbery, first degree burglary and misdemeanor assault. He received concurrent sentences of ten to twenty years, ten to fifteen years and ninety days in jail respectively, with credit for time served. In this appeal from the judgment of conviction, Waggoner alleges error in the denials of his motion to suppress, his motion to continue the trial and his attorney's motion for mistrial. He also claims that the court erred in admitting a photograph of the injured robbery victim and in refusing to give an instruction on circumstantial evidence. For the reasons given below, we affirm.
The charges against Waggoner stem from his activities after leaving a bar in Boise on October 13, 1990. Waggoner and others had seen another bar patron (the victim) paying for drinks with hundred-dollar bills and generally flashing his money around. A woman, acquainted with Waggoner, left the bar with the victim and his friend. Waggoner and another man followed them to the friend's apartment where, according to a plan devised at the bar, they intended to rob the man who had been flashing his money. The men entered the victim's apartment on a cue from the woman, beat the victim and took his wallet containing about $1,800. Waggoner, who had jumped on the victim's friend, held him down and threatened him, allegedly holding a knife to his throat, to keep him from interfering in the melee to wrest the wallet from the victim.
Waggoner was arrested by police in the state of Washington on a fugitive warrant from Idaho resulting from the investigation of this robbery. On April 17, 1991, through extradition proceedings, he was transported back to Idaho. The next day he was interviewed by Boise detectives who tape recorded Waggoner's statement about his participation in the robbery, after he had been advised of his constitutional rights and had signed a waiver of those rights. The state filed its information against Waggoner on May 9, and arraignment was held on May 10, 1991.
At trial, the defense argued its motion to suppress the statement made to the detectives, but the district court denied the motion. In appealing the denial of his motion to suppress, Waggoner claims error in the court's findings that "you knew an attorney had been hired" and that he had voluntarily executed a waiver of his rights prior to disclosing his participation in the robbery. He asserts that the statement he gave to the officers was obtained in violation of his Sixth Amendment right to an attorney. He also asserts that as a result of this violation, his statement cannot be held to have been voluntary, and should have been suppressed.
The Sixth Amendment provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." U.S. Const., Amend. VI. The accused is entitled to counsel at any "critical stage of the prosecution." United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967). This right to counsel attaches at or after the time that adversary judicial proceedings have been initiated against the accused. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972). The commencement of the criminal prosecution, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, marks the "critical stage of the prosecution" to which the guarantees of the Sixth Amendment are applicable. Id. at 690, 92 S.Ct. at 1883.
Waggoner first contends that extradition is a critical stage of the criminal proceedings, thereby triggering the Sixth Amendment protection. He does not cite precedent for this position, and the authority is to the contrary. Under the Uniform Criminal Extradition Act, codified in Idaho at I.C. §§ 19-4501 through 4527, a person arrested upon a fugitive warrant has the right to demand legal counsel to test the arrest. I.C. § 19-4510. The authority of the arresting state is limited to determining that the extradition documents are in order, that the petitioner is charged with a crime in the demanding state, that the petitioner is the person named in the request for extradition and that the petitioner is a fugitive. Kerr v. Watson, 103 Idaho 478, 649 P.2d 1234 (Ct.App.1982). The statutory right to counsel does not give rise to a constitutional right to an attorney because extradition is not a critical stage of the criminal proceedings. See Dunkin v. Lamb, 500 F.Supp. 184 (D.Nev.1980).
Because the only purpose of extradition is the return of the fugitive to the place of the alleged offense, his constitutional rights, other than the present right to personal liberty, are not involved. People ex rel. Shockley v. Hardiman, 152 Ill.App.3d 38, 105 Ill.Dec. 240, 504 N.E.2d 109 (1987). 1 It also has been held that an accused's right to counsel did not attach when he was arrested on a fugitive warrant and waived extradition proceedings. Judd v. Vose, 813 F.2d 494 (1st Cir.1987). "Because of the summary nature of extradition proceedings, the scope of inquiry surrounding extradition proceedings does not include the kind of preliminary inquiry traditionally intervening between initial arrest and trial." Beauchamp v. Elrod, 137 Ill.App.3d 208, 92 Ill.Dec. 86, 484 N.E.2d 817, 819 (1985). See also Michigan v. Doran, 439 U.S. 282, 288, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978). The Sixth Amendment right to counsel did not attach with the extradition proceedings.
The admissibility of Waggoner's statement, which was made at a time prior to the indictment, does not turn on the presence of counsel at the interrogation. The exclusionary rule as a sanction against depriving an accused of his Sixth Amendment right to counsel is not applicable to pre-indictment confrontation. Kirby v. Illinois, supra. We find no basis to suppress Waggoner's statement on Sixth Amendment principles.
We will also address the question of whether the statement should be excluded because it was obtained in violation of Waggoner's Fifth Amendment right to counsel. Although the right-to-counsel issue was framed in terms of a Sixth Amendment argument in appellant's brief, a majority of the cases relied upon in the argument concern the right to counsel during custodial interrogation, which implicates Fifth Amendment protections. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Waggoner argues on appeal that Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), imposes a two-step inquiry to assess the admissibility of an accused's statements made during custodial interrogation. Waggoner asserts that because the district court failed to address the threshold question of whether the defendant had invoked his right to counsel, it was error for the court to determine the validity of his waiver--the second step of the Smith inquiry. We do not agree. The holding of Smith is that only the question of waiver, which is distinct from the question of invocation of the right to counsel, can be affected by an accused's later responses to continued questioning in the face of the accused's unmet request for counsel. Invocation and waiver "must not be blurred by merging them together." Id. at 98, 105 S.Ct. at 494.
A statement made in the absence of counsel will be admissible in evidence if it is the product of a voluntary, knowing and intelligent waiver of the previously invoked right to have counsel present. State v. Blevins, 108 Idaho 239, 697 P.2d 1253 (Ct.App.1985). Once the right to counsel is exercised by the accused, "the interrogation must cease until an attorney is present." Miranda v. Arizona, supra 384 U.S. at 474, 86 S.Ct. at 1628. Further, an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). "The fruits of [such an] interrogation initiated by the police ... could not be used against [the accused]." Id. at 488, 101 S.Ct. at 1885.
Although Waggoner signed a waiver of rights form on April 18, 1991, he asserts that the waiver was not validly given because the detectives had withheld information that his family had hired counsel for him and that his counsel wanted to talk to him. In effect, Waggoner contends that he invoked his right to counsel through his family's efforts, and he construes the conduct of the detectives as a denial of access to his counsel.
Because there is no evidence in the record that Waggoner ever requested to speak to an attorney while being questioned, we cannot conclude that he was denied his right to have counsel present. Furthermore, the question of whether the conduct of the police or the defendant's ignorance of the attorney's efforts to reach him taints the validity of his waiver and requires exclusion of his statement has been answered in the negative in the corresponding factual setting of Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986):
Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.
* * * * * *
No doubt the additional information would have been useful to [defendant];...
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