Stone v. State

• Decision Date: 11 February 1981
• Docket Number: No. 62744,No. 2,62744,2
• Parties: David Franklin STONE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 542

612 S.W.2d 542

David Franklin STONE, Appellant, v. The STATE of Texas, Appellee.

No. 62744.

Court of Criminal Appeals of Texas, Panel No. 2.

Feb. 11, 1981.

Rehearing Denied March 11, 1981.

Weldon Holcomb, Tyler, for appellant.

Hunter B. Brush, Dist. Atty., Bill Saban, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of murder. The punishment is imprisonment for forty years.

The appellant contends that the trial court committed reversible error in overruling his motion to suppress an incriminating response and statements he made while in custody and out of the presence of his retained counsel. The appellant contends that the testimony was inadmissible because the State failed to prove his incriminating response was given after a knowing and intelligent waiver of his right to have counsel present during questioning. For the reasons which will be stated, we reverse. Our disposition of the case makes it unnecessary to discuss the appellant's other contention.

On the evening of July 7, 1977, the appellant, accompanied by his attorney the Honorable Weldon Holcomb, surrendered himself to Chief Deputy Sheriff Jim Collins at the Smith County Sheriff's Office. Holcomb told Collins that he represented the appellant and that the appellant had been involved in a homicide. After Collins advised the appellant of his rights as required by Art. 38.22, V.A.C.C.P. and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the appellant signed an acknowledgment of the warning, Holcomb stated that the appellant did not wish to make a statement, and Collins agreed to Holcomb's request that the appellant not be interviewed or interrogated out of Holcomb's presence. This agreement was made with the appellant present. Holcomb then disclosed that the victim was Vicky Gill, and drew a map showing the probable location of the body. The appellant was placed in jail, and Collins, accompanied by officers and media personnel, began the search for the body. After they had looked in the wooded area indicated on the map for an hour and a half to two hours without success, Collins had Holcomb called at home to request his permission to bring the appellant out of jail to aid in the search. Collins was informed that Holcomb refused to agree to this request. Collins then called A. D. Clark, III, the District Attorney. When Clark joined the searchers, Collins told him of the circumstances of appellant's surrender, and that Holcomb, appellant's retained counsel, had refused to requested permission to bring appellant out to aid the searchers. Both Collins and Clark testified that Clark was not informed of the agreement not to question the appellant. Clark ordered Deputies Miles and Fleming to bring the appellant to the scene, and Collins instructed them not to speak with the appellant. Clark did not attempt to inform Holcomb of this action, or to otherwise secure Holcomb's presence.

Deputy Miles testified at the hearing on the motion to suppress that the only remark either officer made to the appellant was, "David, come go with us"; that the appellant was not asked at any time before or during the trip if he wanted his counsel present; that no conversation whatever occurred during the fifteen minute ride to the scene. According to Clark's testimony at the hearing, the appellant was brought to the search area at approximately 12:30 a. m. Because there were between five and ten armed officers present, Clark asked that appellant's handcuffs be removed. Clark introduced himself, advised the appellant of his rights, and "asked him if he wanted to waive his (Miranda) rights ... exactly as the card is printed .... (T)he last question was, do you wish to speak to me, or will you now talk to me without your lawyer being present ...." Clark further testified, "Following my conversation my question to him, he asked, to the best of my recollection, what about ...." Clark responded by asking the appellant if he wanted to show the searchers where the body was. The appellant said the searchers were looking in the wrong place, told them the body was about half a mile further north, rode with them in Clark's jeep north along the road and showed them where to turn off. The appellant stayed by the jeep while the officers renewed their search, and found the body within two to three minutes. The appellant was then returned to the jail without making further statements.

The trial court, relying on Williams v. State, 566 S.W.2d 919 (Tex.Cr.App.1978), concluded that the appellant had made a voluntary waiver of his right to counsel guaranteed by the Sixth Amendment and overruled the motion to suppress the testimony concerning appellant's statements and actions at the scene of the search. The trial court stated no Fifth Amendment questions were involved absent any evidence of coercion. At trial Collins' testimony concerning these events was admitted over objection.

The appellant urges that the evidence in this case is insufficient to show he waived his right to counsel guaranteed by the Sixth Amendment to the United States Constitution, and therefore Collins' testimony concerning his incriminating response should not have been admitted. He relies on Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The State contends that there is sufficient evidence of a waiver of appellant's Sixth Amendment right to counsel, citing Williams v. State, supra.

In Brewer v. Williams, supra, the Supreme Court held that incriminating statements and evidence obtained from the defendant who had been charged with kidnapping were inadmissible because there was no showing he had waived his Sixth Amendment right to counsel. In Williams v. State, supra, it was held that a confession by the defendant was admissible because there was sufficient evidence that the defendant who had been charged with murder had waived his Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination.

There has been some understandable confusion, shared by the trial court in this case, between the Sixth Amendment right to counsel, and the "right to counsel" discussed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, since the trial of this case the Supreme Court in the recent decision of Rhode Island v. Innis, 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307 (1980), has clearly stated that these are two different rights, informed by different policies:

"Our decision in Brewer rested solely on the Sixth and Fourteenth Amendment right to counsel ... That right, as we held in Massiah v. United States, 377 U.S. 201, 206, (84 S.Ct. 1199, 1203, 12 L.Ed.2d 246), prohibits law enforcement officers from 'deliberately elicit(ing)' incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. By contrast, the right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and Fourteenth Amendments as interpreted in the Miranda opinion. The definitions of 'interrogation' under the Fifth and Sixth Amendments, if indeed the term 'interrogation' is even apt in the Sixth Amendment context, are not necessarily interchangeable since the policies underlying the two constitutional protections are quite distinct."

(emphasis added). See also Carvey v. LeFevre, 611 F.2d 19 (2d Cir. 1979); State v. McConico, 4 Kan.App.2d 420, 607 P.2d 93 (1980).

The Supreme Court has ruled that the Sixth Amendment right to counsel attaches "at or after the initiation of adversary criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 417 (1977). See also Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424, 432-433 (1977); Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424, 436 (1977); United States v. Ash, 413 U.S. 300, 303, n. 3, 93 S.Ct. 2568, 2570, 37 L.Ed.2d 619, 623 (1973); Rhode Island v. Innis, supra. Such "adversary proceedings" had been commenced against the defendants in both Brewer v. Williams, supra, and Williams v. State, supra.

It is not necessary to reach the issue in this case of whether in light of these decisions the appellant's Sixth Amendment right to counsel had attached at the time he made the incriminating response admitted against him; a review of the record convinces us that the State has not met its burden of proving that appellant waived the right to counsel, based on the Fifth Amendment as interpreted in the Miranda opinion.

The Supreme Court in Miranda held that the State may not use incriminating responses stemming from custodial interrogation unless it demonstrates the use of "procedural safeguards effective to secure the privilege against self-incrimination." Included in these safeguards is the warning that a defendant has the right to have counsel present at interrogation. The Court stated 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, 16 L.Ed.2d at 721.

Once the right to the presence of counsel is invoked, the subsequent procedure is also clearly stated:

"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent."

384 U.S....