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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Rainwater, 425
Supreme Judicial Court of Massachusetts,Worcester.
Argued
Decided
Paul J. McManus, Committee for Public Counsel
Services, Worcester, for defendant.
Kennera M. McSherry, Assistant District
Attorney, for the Commonwealth.
Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR,
GREANEY, FRIED and MARSHALL, JJ.
FRIED, Justice.
The
defendant was found guilty at a jury‑waived trial on six indictments
charging operation of a motor vehicle without the authority of the owner. He moved to suppress statements he had made
to the police while being held following his arraignment on another charge, on
the ground that these statements violated his State and Federal constitutional
rights. The motion was denied and the statements [425
I
The
defendant, nineteen year old Arthur Rainwater, was arrested in
O'Rourke
was investigating a rash of thefts in the city, particularly thefts in which
the thieves left various taunting messages on the vehicles they had stolen and
later abandoned. Several stolen autos
were also emblazoned with numbers, apparently signifying the sequence in which
they had been stolen. Because Rainwater
had been arraigned for the theft of the Toyota earlier that day, O'Rourke knew
the defendant was or was likely to be represented by counsel appointed for him
at that arraignment. When O'Rourke
arrived at the house of correction that evening, Rainwater was brought to meet
him in a conference room. O'Rourke
proceeded to show him a card on which the standard Miranda warnings were
printed and to read these warnings to him as well. Rainwater signed the card. O'Rourke then asked Rainwater about some one
hundred unsolved thefts. Rainwater
readily acknowledged involvement [425
Mass. 542] in several, including the
theft for which he had been arraigned that day.
After Rainwater made these admissions, O'Rourke asked if he would
testify against the other two individuals involved in the thefts, stating that
he would bring Rainwater's cooperation to the attention of the district
attorney. Rainwater said he would not
testify for the prosecution.
The
interrogation lasted about one hour. Two
or three days later, O'Rourke returned briefly to the house of correction to
meet with Rainwater. At this meeting
O'Rourke repeated the Miranda warnings and asked Rainwater if he understood
them. When Rainwater said he did,
O'Rourke showed him a written report of the September 10 interview and asked
Rainwater to sign each page, which he proceeded to do. The motion judge found that O'Rourke had not
questioned Rainwater about the Toyota theft at the September 10 meeting. That is incorrect. This theft, for which Rainwater had been arraigned,
did enter the conversation because O'Rourke's written report of the
interrogation lists this theft among the others in which Rainwater admitted
involvement. As a result, we agree with
Rainwater that the motion judge's subsequent finding that there had been no
reference to or discussion of that theft during the interrogation was clearly
erroneous, and we consider the case on that basis.
Rainwater
pleaded guilty to the September 10 theft of the Toyota. This appeal concerns the string of earlier
thefts, to which Rainwater admitted involvement in his oral and written
statements to O'Rourke. Rainwater sought
to have these statements suppressed prior to his trial on these other charges. At the suppression hearing he asserted a
violation of his rights under the Fifth and Sixth Amendments to the United
States Constitution and under art. 12 of the Massachusetts Declaration of
Rights. That is, Rainwater claimed to
have suffered both a violation of the privilege against self‑incrimination
as implemented by Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny; and of the right to counsel as clarified in Massiah v. United States, 377 U.S. 201,
84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
The motion judge does not appear to have considered these to be distinct
claims, but rather ruled that the statements were admissible, because Rainwater
had been clearly apprised of his Miranda rights, had freely consented to
questioning, had not requested a lawyer during the questioning, and had made
the statements freely and intelligently.
These statements were admitted at the jury‑waived trial on the
charges prior to September 10, including that portion of the statements [425 Mass. 543] which described his involvement in the September 10 theft of the
Toyota, to which he had already pleaded guilty.
In
this appeal Rainwater renews the same constitutional claims he raised
earlier. He argues that his request for
counsel at the time of arraignment operates as a request for counsel similar to
that under the rule in Edwards v.
Arizona, 451 U.S. 477, 484‑485, 101 S.Ct. 1880, 1884‑1885, 68
L.Ed.2d 378 (1981), which held that once an accused has invoked his right to
counsel under the Miranda case, there
can be no further questioning, unless the accused himself initiates such
communication. Rainwater goes on to
argue that once the right to counsel attached at his September 10 arraignment,
any further questioning out of the presence of counsel violated his Sixth Amendment
right to the assistance of counsel.
Finally he argues that, even if the Federal Constitution extends this
right only to the offense for which proceedings had been formally initiated,
this court should adopt a more expansive view of the right to counsel under
art. 12.
II
A
[1][2]
As to the questioning at issue, the defendant was provided with the standard
Miranda warnings at the outset, the questioning was calm and straightforward,
and the motion judge's conclusion that the defendant's statement was given
freely was entirely warranted.
(FN2) The issue in this case is
the propriety of such questioning after a defendant has been arraigned and [425 Mass. 544] counsel appointed. The law
regarding this aspect of police questioning of persons charged with crime is
entirely clear. (FN3) Once a person has been formally charged, as
at an arraignment, the Sixth Amendment right to counsel attaches, Massiah v. United States, 377 U.S. 201,
206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), and the police may not
question a person so charged, who is represented or has sought representation, Michigan v. Jackson, 475 U.S. 625, 632‑635,
106 S.Ct. 1404, 1408‑1411, 89 L.Ed.2d 631 (1986), without the consent of
counsel. This prohibition is
"offense specific." McNeil v. Wisconsin, 501 U.S. 171, 175, 111
S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991).
In speaking for the Court in the first case to focus on this aspect of
the Massiah rule, Maine v. Moulton, 474 U.S. 159, 180 n. 16, 106 S.Ct. 477, 489 n.
16, 88 L.Ed.2d 481 (1985), Justice Brennan stated the rule: "Incriminating statements pertaining to
other crimes, as to which the Sixth Amendment right has not yet attached, are,
of course, admissible at a trial of those offenses." Nor did this statement stand in
isolation. Instead, it is intrinsic to
the Court's discussion of the principles and policies that had guided the
development of this aspect of the right to counsel, and represented what Moulton, supra at 179‑180, 106
S.Ct. at 488‑489, described as a sensible solution to a difficult
problem:
"The police have an interest in the
thorough investigation of crimes for which formal charges have already been [425 Mass. 545] filed. They also have an
interest in investigating new or additional crimes.... In seeking evidence pertaining to pending
charges, however, the Government's investigative powers are limited by the
Sixth Amendment rights of the accused....
On the other hand, to exclude evidence pertaining to charges as to which
the Sixth Amendment right to counsel had not attached at the time the evidence
was obtained, simply because other charges were pending at that time, would
unnecessarily frustrate the public's interest in the investigation of criminal
activities. Consequently, incriminating
statements pertaining to pending charges
are inadmissible at the trial of those charges, notwithstanding the fact that
the police were also investigating other crimes, if, in obtaining this
evidence, the State violated the Sixth Amendment by knowingly circumventing the
accused's right to the assistance of counsel" (emphasis supplied).
The
Court revisited this issue in McNeil v.
Wisconsin, 501 U.S. 171, 175‑176, 111 S.Ct. 2204, 2207‑2208,
115 L.Ed.2d 158 (1991), and strongly reaffirmed the principles and conclusions
of Moulton. It noted that any departure from the
"offense specific" nature of the Sixth Amendment right would have the
unacceptable entailment that "most persons in pretrial custody for serious
offenses would be unapproachable by
police officers suspecting them of involvement in other crimes, even though they have never expressed any
unwillingness to be questioned " (emphasis in original). Id.
at 181, 111 S.Ct. at 2210. (FN4)
The
defendant argues that this rule is incompatible with Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378
(1981), [425 Mass. 546] which held that once a person
subjected to custodial interrogation invokes the right to counsel pursuant to
his Miranda warnings, all interrogation must stop until counsel is provided and
any further uncounselled interrogation violates the Fifth Amendment. The
Edwards rule quite plainly is not offense specific. The defendant argues that the request for
counsel at arraignment is the equivalent of a request for counsel pursuant to Miranda, so that any custodial
questioning after arraignment violates the Fifth Amendment. As a corollary to this proposition, the
defendant argues that any questioning after arraignment must also violate the
right to counsel under the Sixth Amendment.
The Court in McNeil v. Wisconsin,
supra at 177, 111 S.Ct. at 2208‑2209, explicitly rejected that very
argument:
"Having described the nature and
effects of both the Sixth Amendment right to counsel and the Miranda‑Edwards 'Fifth Amendment'
right to counsel, we come at last to the issue here: Petitioner seeks to prevail by combining the
two of them. He contends that, although
he expressly waived his Miranda right
to counsel on every occasion he was interrogated, those waivers were the
invalid product of impermissible approaches, because his prior invocation of
the offense‑specific Sixth Amendment right ... was also an invocation of
the nonoffense‑specific Miranda‑Edwards
right. We think that is false as a
matter of fact and inadvisable (if even permissible) as a contrary‑to‑fact
presumption of policy."
B
[3] The defendant seeks to escape the
clear import of this rule by asserting a close connection between the September
10 theft, for which he had been charged and arraigned, and the other thefts
which were the subject of this trial. He
also notes‑‑and [425
Mass. 547] the Commonwealth concedes‑‑that
O'Rourke violated the defendant's Sixth Amendment rights under Massiah by mentioning the September 10
theft in his questioning and by eliciting an admission in respect to that theft
which was contained in the written report that was admitted as an exhibit and
discussed in this trial.
As to the first point, the defendant
suggests a degree of turmoil and uncertainty in the case law that we do not
detect. In People v. Clankie, 124 Ill.2d 456, 463‑464, 125 Ill.Dec.
290, 530 N.E.2d 448 (1988), the court noted that the Supreme Court in Brewer v. Williams, 430 U.S. 387, 97
S.Ct. 1232, 51 L.Ed.2d 424 (1977) (defendant indicted for abduction admitted
during uncounselled questioning that he had killed the victim of that
abduction), "has ... apparently assumed that sixth amendment rights ...
extend to offenses closely related to [the formally charged] offense ... even
if ... the two offenses must be extremely
closely related, the required relationship exists in this case" (emphasis
in original). In People v. Clankie, supra, the postcharge statements dealt with the
same residential burglaries which were the subject of the charges already
entered. In United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992), the
court recognized "[a]n exception to the offense‑specific requirement
of the Sixth Amendment [right to counsel] ... when the pending charge is so
inextricably intertwined with the charge under investigation that [it] cannot
constitutionally be isolated from ... the uncharged offense." Accord
United States v. Cooper, 949 F.2d 737 (5th Cir.1991), cert. denied, 504
U.S. 975, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992) (uncharged Federal offense of
unlawful possession of registered firearm not inextricably intertwined with pending
State charge of armed robbery involving the same weapon). (FN5)
Under this standard, the auto thefts
which are the subject of [425 Mass.
548] this appeal were not
inextricably intertwined with the September 10 theft with which the defendant
had already been charged at the time of the questioning. Nor were they closely related in the relevant
sense. While it is true that all of the
thefts were committed by the same three individuals, and all of the uncharged thefts evidenced a desire to
taunt the police and display larcenous prowess, each theft was a separate
offense that could and would have to be proved separately. (FN6)
The defendant claims that the cases were intertwined because he and his
cohorts used a similar method of operation, with particular reference to their
penchant for defacing the stolen vehicles with slogans and numbers. We fail to see why these similarities
intertwine the charged offense inextricably with the uncharged offenses now
before the court. In the charged
September 10 theft there is no evidence that the threesome had proceeded to the
point of affixing their signature graffiti to the Toyota. They had just stolen it [425 Mass. 549] and
were caught as they were driving it away.
At most, the evidence indicates that they had effected entry into all
the vehicles by means of a screw driver or dent puller‑‑hardly a
distinctive method of operation in auto thefts.
(FN7)
[4][5] [425 Mass. 550] The
Commonwealth concedes that, contrary to the motion judge's finding, O'Rourke
brought up the charged September 10 offense in questioning Rainwater and that
an admission in respect to that offense was included in the written statement
admitted at trial. Had that portion of
the statement been brought up at a trial for that September 10 theft, there is
no doubt that this would constitute constitutional error such as could only be
excused if shown to be harmless beyond a reasonable doubt. See
Commonwealth v. Curtis, 417 Mass. 619, 635, 632 N.E.2d 821 (1994);
Commonwealth v. Perez, 411 Mass. 249, 260, 581 N.E.2d 1010
(1991). Nor would the Commonwealth be
able to excuse this violation on the ground that the subject came up in the
course of a good faith inquiry into the separate uncharged crimes, for the fact
that the police may in all good faith be investigating another crime does not
absolve them from their constitutional duty to stay clear of any inquiry into a
crime in which the right to counsel has attached. See
Maine v. Moulton, supra at 171 (State has "an affirmative obligation
not to act in a manner that circumvents and thereby dilutes the protection
afforded by the right to counsel").
Accord United States v. Terzado‑Madruga,
897 F.2d 1099, 1109 (11th Cir.1990).
Indeed that is the proposition that was in controversy between the majority
and the dissent in Moulton, supra at
188‑189, 106 S.Ct. at 493‑494 (Burger, C.J., dissenting).
But in this case the statement was not
admitted against Rainwater in a trial for the charged offense. He had been caught red‑handed in the
case of the September 10 theft and pleaded guilty to that offense. It might, therefore, be suggested that
allowing the admission of the statement in a trial for the uncharged offenses
was perfectly proper. The defendant
responds by arguing that the questioning having been improper, any use of its
fruits is also improper, even if those fruits are served up in a trial for
another offense. The defendant directs
us to United States v. Mitcheltree,
940 F.2d 1329, 1342‑1343 (10th Cir.1991), and United States v. Terzado‑Madruga, supra at 1112‑1113,
for this proposition. While both cases
recite the applicability of the fruit of the poisonous tree doctrine, both
courts allowed the admission of the
contested evidence, despite blatant [425
Mass. 551] violations of the
defendant's Sixth Amendment rights in which the government made surreptitious
recordings of conversations in which it utilized informants to construct
situations that were certain to elicit incriminating statements regarding
charged offenses where the right to counsel had already attached. See
United States v. Mitcheltree, supra at 1337‑1341;
United States v. Terzado‑Madruga, supra at 1109‑1110. In stark contrast, Rainwater was not tricked
into admitting his involvement in other uncharged car thefts. He was aware he was being questioned by a
government agent and understood the purpose of O'Rourke's questioning. The statement about the September 10 theft
was brief and insignificant relative to Rainwater's admissions to the earlier
thefts for which he was subsequently tried.
It supplied no missing element in the proof of those other crimes which
are before us now. If the judge in this
jury‑waived trial credited O'Rourke's report of Rainwater's statement
about the offenses in issue here at all, it would have been sufficient to
justify the findings of guilt and the mention of the September 10 offense would
have added nothing. Thus, even if error,
its introduction into evidence here was harmless beyond a reasonable doubt.
[6] Similar considerations dispose of the
defendant's claim that O'Rourke engaged in improper attempts to plea bargain
with a represented accused in the absence of his lawyer. In his testimony at the suppression hearing
Rainwater said, "Before ... talking about the car charges," O'Rourke
told him, "That if I cooperated, that he could probably get me
probation," and that "maybe he could talk to the [district attorney],
see if I could get probation."
O'Rourke testified that "[a]t the end of the interview,"
presumably after he had described the various thefts about which O'Rourke
questioned him, O'Rourke asked Rainwater whether he would testify against his
fellow thieves and said that he would mention Rainwater's cooperation to the
district attorney. He told Rainwater
that, "if the [district attorney] had a lesser sentence for him, since he
had cooperated, that I would have no objections to it." When Rainwater's counsel questioned whether
these remarks "would also apply [to] the September 10th offense that he
was held on," O'Rourke replied that he "didn't say anything about the
September 10th offense," but neither had he specifically excluded it from
the offer. O'Rourke was quite clear that
these remarks regarding possible leniency came after he had asked Rainwater to
testify [425 Mass. 552] against his friends and Rainwater had
declined, which is after Rainwater had made his damaging admissions. The judge's findings were consistent with
O'Rourke's testimony and placed this discussion at "the conclusion of the
conversation with the defendant."
Certainly it is wrong for a police
officer to attempt to plea bargain with a person formally charged with that
very crime in the absence of his lawyer,
Commonwealth v. Manning, 373 Mass. 438, 443 n. 6, 367 N.E.2d 635 (1977),
but when a police officer's inquiries and remarks of the sort involved here do
not extend to charged offenses, they do not fall under that prohibition. Here the offers‑‑or hints of
offers‑‑may not have specifically excluded the September 10 charged
offense. In a situation like this, the
investigating officer should take pains to make it clear he is not discussing
the charged offense, just as he should with any line of questioning he
pursues. But in this specific instance,
as with the questioning, any error was harmless. Rainwater had been caught red‑handed in
the case of the charged offense and pleaded guilty to it. That offense is not now before the
court. The most one could claim of
Rainwater's statements regarding the earlier thefts, which are the subject of
this appeal, is that their elicitation may have been partially induced by the
suggestion of leniency Rainwater might have attributed to the charged offense
as well as the uncharged offenses. But
this is far fetched. O'Rourke testified
that the possibility of leniency was only discussed at the end of the
conversation, after Rainwater had already made the statements disputed
here. Finally and most conclusively, in
an affidavit submitted in support of his motion to suppress, Rainwater states: "During the questioning by Officer
O'Rourke [September 10] I was advised that a disposition which [the lawyer
appointed at arraignment] had negotiated in this case would not be adversely
affected by my cooperation with the police.
This disposition involved a guilty plea and suspended sentence as part
of a joint recommendation by the District Attorney and [his lawyer]." Although the Commonwealth neglects to make
any mention of this important admission, because Rainwater acknowledges in this
affidavit that he was aware that his lawyer had already agreed on a
plea and on the joint recommendation of a suspended sentence for the September
10 theft, which would not be affected by his subsequent cooperation in response
O'Rourke's questions, there is simply no basis for claiming that O'Rourke's allusion
to the [425 Mass. 553] September 10 charge‑‑or
the failure explicitly to exclude it from the discussion‑‑prejudicially
induced Rainwater to admit to the earlier thefts which are at issue here. (FN8)
III
[7] As a final argument, the defendant invites
us to find a violation of art. 12, even if we conclude that O'Rourke's
questions regarding the uncharged offenses did not violate the Constitution of
the United States. The dissent also
rests its conclusion on art. 12. Article
12 provides that "every subject shall have a right to ... be fully heard
in his defence by himself, or his counsel, at his election." We have long interpreted that text
generously to recognize the "fundamental ... right of a person accused of
a serious crime to have the aid and advice of counsel."
Guerin v. Commonwealth, 339 Mass. 731, 734, 162 N.E.2d 38
(1959). And we have drawn on our own
judgment and experience to grant more expansive protections under art. 12 than
have been required of States under the Sixth Amendment. Thus in
Commonwealth v. Hodge, 386 Mass. 165, 169, 434 N.E.2d 1246 (1982), a case
discussing a defendant's right to be represented by counsel who is not burdened
by divided loyalties caused by a conflict of interest, we stated: "The Massachusetts Declaration of Rights
can, and in this case does, provide greater safeguards than the Bill of Rights
of the United States Constitution. We
have repeatedly held that the right to be assisted effectively by counsel is
independently guaranteed by art. 12."
Under the Sixth Amendment, the Supreme Court had held that a defendant
must show some actual prejudice arising from the conflict which adversely
affected his lawyer's performance before he could claim a denial of the right
to counsel. Cuyler v. Sullivan, 446 U.S. 335, 348,
100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980).
It was our view, however, that:
"
'the defendant is not to be put to the burden, perhaps insuperable, of probing
the resolve and the possible mental conflict of counsel....' [T]he right to effective assistance of
counsel is fundamental. Such a
fundamental right should not depend upon a defendant's ability to meet such an
impossible burden, and so we hold that, having established a genuine conflict
of interest, [the defendant] was required
[425 Mass. 554] to prove neither
actual prejudice nor adverse effect on his trial counsel's performance to
entitle him to a new trial under art. 12."
Commonwealth
v. Hodge, supra at 169‑170, 434 N.E.2d 1246, quoting Commonwealth v. Cobb, 379 Mass. 456,
461, 405 N.E.2d 97, vacated sub nom. Massachusetts v. Hurley, 449 U.S. 809,
101 S.Ct. 56, 66 L.Ed.2d 12 (1980), appeal dismissed, 382 Mass. 690, 414 N.E.2d
1006 (1981).
Similarly, this court and the bar of the
Commonwealth have historically taken measures to assure persons charged with
crime the benefits of legal representation.
Thus the Supreme Judicial Court adopted a rule which required the
appointment of counsel in all noncaptial felony cases in 1958, five years before Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963), imposed this obligation on the States. See Rule 10 of the General Rules, 337 Mass.
813 (1958) (now S.J.C. Rule 3:10, as appearing in 416 Mass. 1306 [1993] ). In 1964, this right was expanded to encompass
indigent defendants who were charged with any crime which might result in
imprisonment, Rule 10 of the General Rules, as appearing in 347 Mass. 809
(1964), several years before the Supreme Court declared the same right under
the Federal Constitution. Argersinger v. Hamlin, 407 U.S. 25, 37,
92 S.Ct. 2006, 2012‑2013, 32 L.Ed.2d 530 (1972). See Wilkins, Judicial Treatment of the
Massachusetts Declaration of Rights in Relation to Cognate Provisions of the
United States Constitution, 14 Suffolk U.L.Rev. 887, 888‑889 n. 7 (1980). And as notable as have been this court's
efforts in this area, the efforts of the bar in responding to this mandate for
many years on a largely pro bono basis have been even more so.
The extension of the right to counsel the
defendant asks for here is, however, of a different order. We are asked here not to do better what we acknowledge the bar and legal
system should already be doing, but to undertake a new departure which, in
Justice Brennan's words would "unnecessarily frustrate the public's interest
in the investigation of criminal activity." Maine v. Moulton, 474 U.S.
159, 180, 106 S.Ct. 477, 489, 88 L.Ed.2d 481 (1985). In the cognate area of rights under the Miranda decision and its progeny, we
have been content to interpret art. 12 as the Supreme Court has interpreted the
Fifth Amendment, just as we have in respect to the right to counsel under Massiah v. United States, which is in
issue here. We discern no sufficient
reason to depart from the balance the Supreme Court has struck between the
interests of defendants and interests of the public in Maine v. Moulton, supra,[425
Mass. 555] and
McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158
(1991). Such a departure from precedent
may not only have unforeseen consequences for law enforcement but it would be
unwarranted by any precedent either in our own jurisprudence and traditions or
in those of any of our sister States.
The closest analogy the defendant asserts
comes from civil matters in which counsel is prohibited from communicating with
a represented person; however, that
analogy supports the balance struck in the
Moulton and McNeil cases. Supreme Judicial Court Rule 3:07, Canon 7, 7‑104(A)(1),
as appearing in 382 Mass. 786 (1981), forbids an attorney from approaching an
adversary when he knows that adverse party is represented by counsel. Even assuming the disciplinary rules are an
appropriate analogy in this case where the defendant's proposed rule would
control not the conduct of attorneys but of police officers, it is striking
that this rule is likewise offense specific as it only prohibits an attorney
from "communicat[ing] on the subject of the representation with a party he
knows to be represented by a lawyer in
that matter," and does not prevent communication concerning matters in
which the adverse party is not represented (emphasis supplied). (FN9)
Finally, we are aware of no jurisdiction
which has adopted a different approach.
The courts which have considered this question have explicitly chosen to
follow the same offense‑specific rule which we adhere to today. See, e.g.,
Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir.1992), cert. denied sub nom.
Hendricks v. Calderon, 517 U.S. 1111, 116 S.Ct. 1335, 134 L.Ed.2d 485 (1996); Carr v. State, 840 P.2d
1000, 1005 (Alaska.Ct.App.1992); State v. Richmond, 114 Ariz. 186, 190‑191,
560 P.2d 41 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101
(1977);
Rutledge v. State, 263 Ark. 781, 784, 567 S.W.2d 283 (1978);
People v. Clair, 2 Cal.4th 629, 658, 7 Cal.Rptr.2d 564, 828 P.2d 705
(1992), cert. denied, 506 U.S. 1063, 113 S.Ct. 1006, 122 L.Ed.2d 155 (1993);
State v. Birch, 219 Conn. 743, 750‑751, 594 A.2d 972 (1991);
People v. Watson, 223 Ill.App.3d 143, 146, 164 Ill.Dec. 858, 583
N.E.2d 1180 (1991); State v. Norris, 244 Kan. 326, 332‑333,
768 P.2d 296 (1989); People v. Crusoe, 433 Mich. 666, 697, 449
N.W.2d 641 (1989); State v. Sparklin, 296 Or. 85, 94‑95,
672 P.2d 1182 (1983); State v. Sahlie, 277 N.W.2d 591, 595‑596
(S.D.1979); Shepperson v. Commonwealth, 19 Va.App.
586, 590‑591, 454 S.E.2d 5 (1995); State v. Stewart, 113 Wash.2d 462, 473‑479,
780 P.2d 844 (1989), cert. denied, 494 U.S. 1020, 110 S.Ct. 1327, 108 L.Ed.2d
502 (1990); [425 Mass. 556] State v. Clawson, 165
W.Va. 588, 601‑604, 270 S.E.2d 659 (1980). At one time New York adopted a different
approach, but New York too has chosen to utilize the offense‑specific
rule followed elsewhere. See People v. Bing, 76 N.Y.2d 331, 341‑350,
559 N.Y.S.2d 474, 558 N.E.2d 1011 (1990) (overruling previous holding which
prohibited police from questioning defendants, not only on pending charges but
on other unrelated matters as well).
(FN10)
Without support in text, tradition or
analogy, and unguided even by experience in sister jurisdictions, we decline to
embark on the adventure to which the defendant invites us, especially where the
destination is an uncertain one and, travelled in the name of our Constitution,
hard to return from.
IV
In choosing the "inextricably
intertwined" test, and more importantly in deciding how to apply that test
here, we concur with the general trend followed in the State and Federal
courts. Although the dissent states at
the outset that it does not "cavil" at the choice of the phrase
"inextricably related," it then proceeds to speak at every turn as if
the test were whether the events were "closely connected to the crime
charged," whether they "closely surround [ed]" the charged
crime, whether there was a "close relationship" between the charged
and uncharged offenses. It is on this
basis that the dissent reaches a contrary conclusion. As we think we have demonstrated, see note 7, supra, that conclusion is not in accord
with the case law or even with the one case it cites as supporting its
similarity based proposal. United States v. Arnold, supra at 41, 42,
states specifically that the issue is "whether the same acts and factual predicates underlie both the pending and the
new charges" and excluded the statements at issue because the uncharged
and charged offenses "arose from the
same predicate facts, conduct, intent and circumstances" (emphasis
supplied).
Although the dissent's proposal is
unsupported by authority, [425 Mass.
557] its conclusion compels us to
probe more deeply and ask why the test we adopt and our application of it are
better than the broader and more ambiguous rule which the dissent appears to
propose. This is a question which can
only be answered if we consider the purpose the rule is to serve and what
constitutional value the rule we adopt is intended to implement. Neither test recommends itself for its self‑evident
quality, and we progress no further by saying that one or the other test better
implements the right to counsel, whether under the Sixth Amendment or the
Declaration of Rights, since what the right to counsel guarantees in these
situations is precisely what is in question.
We think that the beginning of wisdom‑‑and perhaps very
nearly its end‑‑in this matter is the passage we quoted previously
from Justice Brennan's opinion in
Moulton, decided six years prior to
McNeil. This statement makes it
clear that, whatever the doctrine and contours which accompany the Sixth
Amendment, uncounselled police questioning is not, in and of itself, a second
rate or suspect state of affairs. The
right to counsel is a more limited and balanced concept, as Justice Brennan's
reference to "unnecessarily frustrat [ing] the public's interest in the
investigation of criminal activities" amply demonstrates.
Moulton, supra at 180, 106 S.Ct. at 489. The right to counsel does not attach at all
until formal criminal proceedings have been instituted, as explicitly taught by Massiah v. United States, 377 U.S. 201,
84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and its progeny. The source of this right, as stated, is the text
of the Sixth Amendment itself, which, in this respect, is no less protective
than the text of the Declaration of Rights.
Because the right at issue is quite simply the right to the assistance
of counsel when one has been charged with
a crime, then it is the criminal charge which calls that right into being
and marks its extent. If it were
otherwise, we would have no reason to stop at just those offenses which are
similar to the charged offense, as it would be simpler just to say that counsel
is required for all communications with an individual‑‑whether or
not such communications related to a charged offense. If we hew to the right which is protected by
the Constitution, however, the wariness, which arises when the police question
a charged person about other crimes, stems from our need to avoid undermining
that very right: that is the right to
counsel in respect to the charged
offense. If the questioning about other
crimes is intended to, or does undermine, the charged person's right to
be assisted by counsel in respect to the charged crime then the right we have [425 Mass. 558] acknowledged requires that such questioning also be restrained.
The two tests discussed in this opinion
and the dissent, the generally accepted narrow "inextricably intertwined"
or "extremely closely related" test and the dissent's broader
similarity‑based test, may both be thought to safeguard an individual's
right to counsel, because the closer the relation, the greater the risk that
questioning about the uncharged crime will interfere with the right to counsel
for the charged offense. But that is
just the point in this case: there was
neither the intention nor the risk that O'Rourke's questioning of Rainwater
would disadvantage Rainwater, or interfere with his counsel's representation of
him, in respect to the September 10
theft, the one crime for which he had been charged. As to that singular theft, Rainwater had
already agreed to plead guilty and a joint recommendation of a suspended
sentence had been agreed on. Thus, his
discussion with O'Rourke could have had no impact on the outcome of that
charged offense.
Judgments
affirmed.
MARSHALL, Justice, dissenting, with whom
WILKINS, Chief Justice, and ABRAMS, Justice, join.
This case deals with that most fundamental
right, the right to counsel. The motion
judge never considered that issue; he
should have, but did not, allow counsel to explore areas relevant to the
defendant's right to counsel claims. The
court today decides that issue, rather than remanding the case to the motion
judge for a hearing on the defendant's right to counsel claims. I respectfully dissent.
The court observes that the judge
"does not appear to have considered [the Fifth Amendment and Sixth
Amendment to the United States Constitution] as distinct claims." Ante
at 1221. The record is clear that the
motion judge focused only on the defendant's Fifth Amendment voluntariness
claim and disregarded his Sixth Amendment claim entirely. (FN1)
It is possible that, had the motion judge considered the defendant's
right to counsel [425 Mass. 559] claims, he might have concluded that
the charged and uncharged automobile thefts were not "inextricably
intertwined." But he expressly
declined to permit counsel to establish the relationship between those
thefts. In my judgment that was
error. The record was surely sufficient
to give rise to a substantial issue whether the right to counsel, which had
attached at the very least to the charged September 10 automobile theft, (FN2)
CARRIED OVER TO the uncharged remaining offenses.
It is settled law that, once counsel has
been named to represent a person charged with a crime, he may not be questioned
about that crime in the absence of counsel.
See Michigan v. Jackson, 475
U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Maine v. Moulton, 474 U.S.
159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985); Commonwealth v. Perrot, 407
Mass. 539, 545, 554 N.E.2d 1205 (1990).
The court holds that in this case it was proper for a police officer to
question the defendant about the uncharged automobile thefts because they were
not "inextricably intertwined;" with the offense already
charged. I do not cavil at the choice of
the phrase "inextricably intertwined"; the court correctly notes that other courts
have used it. Rather, it is the
application of that test to these facts with which I disagree. To tolerate, as the court does today, the
interrogation that occurred here invites police questioning on matters in the
forbidden zone. (FN3) In my view, a rule that prohibits custodial
interrogation of events closely surrounding the charged crime would give [425 Mass. 560] clear guidance to police officers when they question suspects
about uncharged crimes, and would give full effect to the "fundamental ...
right of a person accused of a serious crime to have the aid and advice of
counsel." Guerin v. Commonwealth, 339 Mass. 731,
734, 162 N.E.2d 38 (1959). The court's
decision today fails on both counts.
The record shows the following sequence
of events. On September 10, 1992,
Rainwater was arrested when he attempted to flee from a stolen automobile in
which he had been a passenger when it was pursued by police. Later that day, Rainwater was brought to
court and arraigned. Through the
Committee for Public Counsel Services (CPCS), a bar advocate was appointed to
represent Rainwater. In preparation for
arguing the question of his bail, she met with Rainwater for between five and
ten minutes in a holding cell at the courthouse. Counsel did not have the opportunity to
discuss much with her client; she
testified at the motion hearing that after the bail hearing Rainwater was
"whisked off to the jail rather quickly" before she could meet with
him again at the courthouse. (FN4) He was taken to the Worcester County house of
correction. That same evening Officer
James O'Rourke, a member of the auto theft squad of the Worcester police
department, interviewed Rainwater.
O'Rourke testified at the hearing on the
motion to suppress that he knew at the time that Rainwater had been arraigned
and either had an attorney or had stated that he would hire one. Rainwater was brought to a conference room
where, Rainwater testified, O'Rourke told him that he had come to talk
"about the charges, the motor vehicles that were stolen." Rainwater testified that he asked O'Rourke
"Shouldn't my lawyer be here?," to which O'Rourke replied, "If
you sign this paper [she] won't need to be." Rainwater then signed a Miranda card
presented to him by O'Rourke, and O'Rourke proceeded to [425 Mass. 561]
question Rainwater about a series of automobile thefts, including the theft for
which Rainwater had been arraigned that same day and for which counsel already
had been appointed. (FN5) He obtained from Rainwater statements
concerning seven automobiles stolen on August 27, August 30, September 7,
September 8, September 9, and September 10, 1992.
In January, 1993, Rainwater was charged
with six incidents of operating a motor vehicle without the authority of its
owner, offenses that occurred on August 27 and 30 and September 7, 8, and 9
(two thefts). (FN6) It is in connection with the trial of those
offenses that his claims arise.
In
McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d
158 (1991), the United States Supreme Court considered the following question
that previously had been certified from the Court of Appeal to the Supreme
Court of Wisconsin: "Does an
accused's request for counsel at an initial appearance on a charged offense
constitute an invocation of his fifth amendment right to counsel that precludes
police‑initiated interrogation onunrelated,
uncharged offenses?" (FN7) The Supreme Court concluded for the first
time that under the United States Constitution the Sixth Amendment right to
counsel is "offense specific."
(FN8) Because the offenses in McNeil were wholly unrelated to each
other, (they occurred weeks [425
Mass. 562] apart and in different
locations), (FN9) the Court was not required to and did not elaborate on the
term (new to constitutional jurisprudence) "offense specific." It did not suggest that an offense is
"specific" for Sixth Amendment purposes if it "could and would
have to be proved separately," the phrase used by the court today. (FN10)
Since McNeil, some United
States Courts of Appeal have concluded that when the offenses are
"inextricably intertwined," the Sixth Amendment right to counsel
carries over to the uncharged offenses.
See United States v. Arnold,
106 F.3d 37, 41 (3d Cir.1997); United States v. Carpenter, 963 F.2d 736,
740 (5th Cir.), cert. denied., 506 U.S. 927, 113 S.Ct. 355, 121 L.Ed.2d 269
(1992);
United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). Using that test the court concludes that
Rainwater's right to counsel that had attached to the September 10 theft for
which he was charged did not carry over to the other thefts.
I dissent from the court's conclusion and
its reasoning in two respects. The court
first observes that if the motion judge had "specifically found" that
the interchange between O'Rourke and Rainwater about the presence of
his lawyer had taken place, "we would not be so ready to say that the
defendant's Fifth Amendment Rights under
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had
been fully accorded." Ante at n. 2. While the judge did not
make any such specific finding, there was no [425 Mass. 563]
testimony by O'Rourke (or anyone else) to rebut it. I conclude that there is a substantial
possibility that Rainwater's Fifth Amendment right to counsel rights were
violated. (FN11) Certainly his statement to O'Rourke, if made,
"can reasonably be construed to be an expression of a desire for the
assistance of an attorney in dealing with custodial interrogation by the
police." McNeil v. Wisconsin, 501 U.S. 171, 178,
111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991).
I also conclude that the court
misapprehends Rainwater's Sixth Amendment claim with respect to this aspect of
O'Rourke's interrogation. There is a
close relationship between the incidents about which O'Rourke sought to
question Rainwater and the offense for which Rainwater already had secured
counsel. Rainwater's reference to his
lawyer followed O'Rourke's statement that he wanted to talk "about stolen
automobiles." In my view O'Rourke
acted in a manner that "circumvent[ed] and thereby dilut[ed]" the
protection afforded Rainwater by his right to counsel. Maine v. Moulton, supra at
171, 106 S.Ct. at 484‑485.
As to the relationship between the
charged and uncharged offenses, in the wake of McNeil, courts have suggested a number of factors that may be
considered in determining the scope of the Sixth Amendment protection in these
circumstances. While the boundaries are
not always clear, "courts have looked for similarities of time, place,
person and conduct." Arnold, supra at 41. See
Whittlesey v. State, 340 Md. 30, 55, 665 A.2d 223 (1995), cert. denied, 516
U.S. 1148, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996); United States v. Kidd, 12
F.3d 30, 33 (4th Cir.1993), cert. denied, 511 U.S. 1059, 114 S.Ct. 1629, 128
L.Ed.2d 352 (1994); Hendricks v. Vasquez, 974 F.2d 1099, 1105
(9th Cir.1992), cert. denied sub nom. Hendricks v. Calderon, 517 U.S. 1111, 116
S.Ct. 1335, 134 L.Ed.2d 485 (1996); United States v. Carpenter, 963 F.2d 736,
741 (5th Cir.), cert. denied, 506 U.S. 927, 113 S.Ct. 355, 121 L.Ed.2d 269
(1992). In this case all the automobile
thefts occurred within days of each other, all the thefts took place within the
same section of Worcester, and the modus operandi was identical in each
case; the automobiles were stolen using
either a screw driver or a dent puller, and were then each marked in the same
distinctive manner, and subsequently abandoned.
In each case the marks included the word "Kings," [425 Mass. 564] the message, "Police, see if you can catch us," and a
number, apparently signifying the sequence in which they had been stolen. The offenses all were investigated by the
same automobile theft squad of the Worcester police, the interrogating police
officer considered them all as one, and all offenses but one were charged and
tried together. On this record I would
require the motion judge to consider whether the incriminating statements
elicited by O'Rourke on September 10 were obtained in violation of Rainwater's
art. 12 right to counsel and should have been suppressed. (FN12)
If we adhere to the view under our
Constitution that the United States Supreme Court has adopted with respect to
the Sixth Amendment that once the right to counsel has attached all further police interrogation is not prohibited (a claim that we need
not reach in this case), the impermissible area of police questioning of
custodial suspects needs to be defined as clearly as possible. The reason is not because we view
uncounselled police questioning, in and of itself, as a second rate or suspect
state of affairs, but to avoid precisely the line blurring that occurred in
this case. I believe a rule that places
police officers on notice that it is constitutionally impermissible to
interrogate a custodial defendant about other uncharged crimes closely
connected to the crime charged unless the attorney representing the defendant
on that charge consents, is a rule that most effectively protects the art. 12
guarantee of the right to counsel and the equally important interest (shared by
the police and the public) of the investigation of crimes.
(FN1.) At the suppression hearing, Rainwater's
arraignment attorney testified that Rainwater had been "whisked off"
to the house of correction. She did not,
however, suggest‑‑nor is there any evidence‑‑that she
had then or at any time been prevented from communicating with her client for
as long as she desired.
(FN2.) At the suppression hearing Rainwater
testified that O'Rourke told him that he had come to talk about stolen
automobiles and explained his rights to him at the outset. Rainwater testified that he could not recall
O'Rourke's saying anything about a lawyer, but testified that he had asked
O'Rourke, "Shouldn't my lawyer be here?," to which O'Rourke replied,
"If you sign this paper [she] won't need to be." In contrast, O'Rourke testified that he
began by reading a Miranda card to Rainwater and asking him to sign it. The card, which was admitted in evidence,
clearly includes the standard notice that the defendant had a right to have a
lawyer present. O'Rourke was not asked
either on direct examination or on cross‑examination about the statement
Rainwater attributed to him and the motion judge's finding on this point states
only that "[a]t the commencement of their conversation [O'Rourke] advised
the defendant of his Miranda rights. He
showed him the Miranda card. The
defendant indicated that he understood his rights, and he signed the
card." While the motion judge did
not refer specifically to the exchange reported in Rainwater's testimony, and
was not required to do so, the judge did find that "the defendant at no
time requested to have a lawyer and at no time indicated that he did not wish
to speak to the officer." If the
motion judge specifically found that an interchange such as the one Rainwater
alleges had taken place, we would not be so ready to say that the defendant's
Fifth Amendment rights articulated in
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had
been fully accorded, since police officers have no business giving what an
unsophisticated person might consider advice that he does not need to have
lawyer. They must remain entirely
neutral on the subject.
Contrary to the suggestion in
the dissent, the motion judge's finding on this point is quite sufficient. Post
425 Mass. at 562‑563, 681 N.E.2d at 1223. There is no requirement that there be a
specific finding as to each item of unsupported testimony, but only as to the
legal contention‑‑here an implied request for counsel‑‑on
which such testimony might bear. Our
review does not take us behind such findings to require findings on the truth
vel non of particular items of testimony that bear on the relevant legal
contention. We see no reason to embark
on such a practice here.
(FN3.) Rainwater seeks to make something of
the fact that, although he may have consented to questioning after receiving
the Miranda warnings, he had not consented to the meeting with O'Rourke in the
conference room at the house of correction.
We fail to see any relevance in this fact, and certainly decline to add
to the familiar and workable rules governing this area a new rule of uncertain
scope which would require a defendant's consent before he is brought into the
presence of those who will question him. The defendant offers no authority to support
this proposal.
(FN4.) The defendant quotes Michigan v. Jackson, 475 U.S. 625, 106
S.Ct. 1404, 89 L.Ed.2d 631 (1986), to support the contentions he now
raises. But it cannot support this
weight.
Jackson decided two companion cases.
In one the defendant Bladel had been charged and arraigned for a triple
murder. Counsel was appointed but was
unavailable to consult with Bladel for several days. During the interim, the police obtained a
confession from Bladel, who was in custody, after he waived his Miranda
rights. In the other case the defendant
Jackson was suspected of complicity in a murder. Arrested on an unrelated charge, he made a
series of incriminating statements relating to the murder prior to his arraignment
at which he requested counsel. The
following morning, before Jackson was able to consult with counsel the police
obtained a Miranda waiver and another statement. The sole issue the Court considered was
whether the Edwards rule extended to
the Sixth Amendment insofar as a subsequent Miranda waiver by the accused might
validly waive the Sixth Amendment right to counsel that had attached at
arraignment. The Court held that the
Miranda waiver was not effective to do that.
But there was no consideration of the offense specific nature of the
Sixth Amendment as announced in Maine v.
Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), which had been
decided less than four months earlier.
Indeed, that issue was so far from the Court's mind that it did not
notice that its own statement of the facts,
Jackson, supra at 628, 106 S.Ct. at 1406‑1407, failed to clarify
whether Jackson's arraignment was based on the murder or the unrelated
charges. (The briefs before the Court,
however, make it clear that the arraignment took place on the murder
charge.) In McNeil v. Wisconsin, 501 U.S. 171, 179, 111 S.Ct. 2204, 2209‑2210,
115 L.Ed.2d 158 (1991), the Court stated that its conclusion did not contradict Jackson, "it rests upon it" (emphasis in original).
(FN5.)
A number of courts have examined this "closely related" argument
before and recognized that the right to counsel may apply to offenses that have
not yet been charged. In examining the
scope of this exception, courts seem to use the terms "inextricably
intertwined," United States v.
Hines, 963 F.2d 255, 257 (9th Cir.1992), "extremely closely
related," United States v.
Carpenter, 963 F.2d 736, 740 (5th Cir.), cert. denied, 506 U.S. 927, 113
S.Ct. 355, 121 L.Ed.2d 269 (1992), and "closely related," United States v. Kidd, 12 F.3d 30, 33
(4th Cir.1993), interchangeably without intending any divergence in
meaning. See United States v. Arnold, 106 F.3d 37, 40‑41 (3d Cir.1997);
Whittlesey v. State, 340 Md. 30, 53‑54, 665 A.2d 223 (1995),
cert. denied, 516 U.S. 1148, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996). The United States Court of Appeals for the
Third Circuit in Arnold, supra at 41,
and the Court of Appeals of Maryland in
Whittlesey, supra at 54, 665 A.2d 223, have noted that two lines of case
law have developed under this exception.
The first line of cases construes the phrase "closely related"
more broadly where there is evidence that the police deliberately sought to
circumvent the prohibition on questioning
in respect to the charged offense.
In this case the reference to the charged offense was incidental at most
and, as we explain, O'Rourke could have had no reason to seek further evidence
as to that offense as Rainwater had already agreed to plead guilty and it had
been agreed that a suspended sentence would be recommended. United States v. Arnold, supra
at 41, citing United States v. Martinez,
972 F.2d 1100 (9th Cir.1992) (court remanded case to determine whether State
prosecutors deliberately dropped charges against accused to facilitate a Federal
investigation of the same topic); United States v. Mitcheltree, 940 F.2d
1329, 1342‑1343 (10th Cir.1991) (government exploited contact between
defendant and government informant to obtain evidence for charged offense and
this interaction was used as the basis for a witness tampering
prosecution). The second, and more
extensive line of cases, focuses "entirely on whether the facts underlying
the charged and uncharged offenses are either 'closely related' or
'inextricably intertwined,'; two terms which
we take to mean the same thing." United States v. Arnold, supra. However defined, this exception has been
applied in an extremely limited manner, as while many cases have discussed its
purpose and scope and recognized the existence of such an exception, very few
have found occasion to apply it. See Whittlesey v. State, supra at 51, 665
A.2d 223, and cases cited. Noting that
this is a narrow exception, we adopt the "inextricably intertwined"
language, although we, like other courts, recognize that this same test is
denoted by various other labels.
(FN6.) In noting that these thefts were
separate offenses that could and would have to be proved separately, we propose
no other test than that in general use among the State and Federal courts, the
"inextricably intertwined" test.
See note 5, supra, and Section
IV below. That being said, if the
uncounselled and counselled offenses cannot be proved separately, then surely
there has been a constitutional violation.
Thus, the phrase referred to by the dissent may conveniently serve as a
sufficient though not a necessary condition for a violation.
(FN7.) The dissent takes a different position
and claims that the September 10 theft and the prior thefts involved
"events closely surrounding the charged crime," creating a
sufficiently "close relationship," that O'Rourke's questioning as to
Rainwater's involvement in other auto thefts, apart from the September 10
offense, raised "a substantial issue whether [Rainwater's] right to
counsel ... carried over to the uncharged remaining offenses." To support this position, the dissent notes
that the thefts "occurred within days of each other," over the course
of two weeks; that they "took place
within the same section of Worcester";
and that they involved an identical modus operandi. Post at 563, 681 N.E.2d at
1233. These similarities are enough to
tie the crimes together, the dissent claims, because "courts have looked
for similarities of time, place, person and conduct," quoting United States v. Arnold, 106 F.3d 37,
41 (3d Cir.1997), to determine the scope of a defendant's Sixth Amendment
protections. Post at 563, 681 N.E.2d at 1233. We do not read the cases this way.
Of
the five cases which the dissent cites in support of this position, only Arnold speaks of "similarities of time, place, person and
conduct" (emphasis supplied). Id. In contrast, Whittlesey v. State, 340 Md. 30, 55, 665 A.2d 223 (1995), states
that "[t]o determine whether the same acts underlie both charges, courts
have looked for identity of time,
place and conduct," citing United
States v. Kidd, 12 F.3d 30, 33 (4th Cir.1993). See
Hendricks v. Vasquez, 974 F.2d 1099, 1104‑1105 (9th Cir.1992), cert.
denied sub nom. Hendricks v. Calderon, 517 U.S. 1111, 116
S.Ct. 1335, 134 L.Ed.2d 485 (1996); United States v. Carpenter, 963 F.2d 736,
741 (5th Cir.1992); United States v. Hines, 963 F.2d 255, 257
(9th Cir.1992). Indeed, in United States v. Kidd, supra, the court
said that, "[i]n order to fall within [the 'related offense'] exception,
the offense being investigated must derive from the same factual predicate as the charged offense." Determining that a post‑indictment
drug transaction was not closely related to a number of drug transactions on
which he had previously been charged, the court observed that, although the
latter transaction "involved the same type of crime as the charged
offenses, it involved a different purchaser‑informant, occurred at a
different time, and took place in a different location," thus making it
"factually distinct from, and independent of, the prior distribution
offenses for which the Sixth Amendment right had been invoked." Id.
See People v. Spivey, 245 Ill.App.3d
1018, 1021‑1022, 186 Ill.Dec. 48, 615 N.E.2d 852 (1993) (similar criminal
acts, occurring in same location but at different times with different victims
were not "extremely closely related"). Furthermore, while Arnold speaks once of "similarities," it states that
these factors are used to determine "whether the same acts and factual predicates
underlie both the pending and the new charges," United States v. Arnold, supra at 41, and does not appear to
deviate from the narrow reading given this test by other courts. Indeed, it is instructive to note that, while
all five cases cited by the dissent note and discuss the "closely
related" doctrine, only Arnold
finds reason to apply it and does so stating that both offenses at issue, that
charged (witness intimidation) and that uncharged (attempted murder of a
witness), "arose from the same
predicate facts, conduct, intent and circumstances." Id. at 42. See
post at 556, 681 N.E.2d at 1229.
All thefts at issue in this case occurred at different times, involved
different victims, and took place in different locations, although within a
small geographic area. The only true
identity tying these crimes together would be the unique vandalism. As noted in the text, however, the charged
offense involved no such vandalism to tie it to the uncharged offenses.
(FN8.)
Actual sentencing for the September 10, 1992, offence took place over a year
later on November 23, 1993, after Rainwater pleaded guilty on September 13,
1993, and a sentence of two years in a house of correction to run concurrently
with another sentence was imposed at this time.
(FN9.) Rule 4.2 of the Massachusetts Rules of
Professional Conduct which addresses communications with persons represented by
counsel is, if anything, more specific.
Comment 1 states that the rule "does not prohibit communication with
a represented person ... concerning matters outside the representation ...
regarding a separate matter."
(FN10.) Prior to the Supreme Court's decision
in McNeil v. Wisconsin, 501 U.S. 171,
111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), there was some dispute as to whether a
defendant who invoked his Sixth Amendment right to counsel at arraignment
simultaneously invoked his nonoffense‑specific Fifth Amendment right to
counsel for purposes of subsequent interrogation regarding unrelated
crimes. See United States v. Wolf, 879 F.2d 1320 (6th Cir.1989); United
States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir.), cert. denied,
483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 745 (1987). This argument was disposed of in McNeil v. Wisconsin, supra at 177‑178,
111 S.Ct. at 2208‑2209, which held that a defendant's invocation of his
Sixth Amendment rights did not trigger his Fifth Amendment Miranda rights.
(FN1.) For example, the first time defense
counsel raised a question whether the Worcester police auto theft squad was
investigating stolen automobiles that had "similar manners of entry,
similar markings and they were‑‑really the same 'M.O.,' ". .,
the judge responded, "It doesn't sound like it's relevant to me at
all. We're talking here about voluntariness of statements"
(emphasis supplied). When counsel pressed
the point stating, "The reason that I think it would be important is that
the incident he was arrested for on September 10th was a crime that was
extremely similar to the crimes that had taken place in the days preceding
it," and that he wanted "to lay the foundation for the
similarities," the judge responded:
"I acknowledge that you're probably curious, but we are not going
to go wandering into that swamp."
Later when Rainwater's counsel again sought to raise the issue the
motion judge responded, "I don't think you can go into it this way and I'm
not going to let you." There were
other similar colloquies with Rainwater's counsel during the hearing. Moreover, in summarizing his conclusions, the
judge stated: "Not only do I
determine there was no violation of the Miranda rights during these custodial
interrogations, but I also determine that in the general sense of
voluntariness, [the defendant's] statements were voluntary. I therefore deny the defendant's motion to
suppress."
(FN2.) There is an unresolved question
concerning the scope of counsel's representation itself. At the hearing on the motion to suppress,
counsel testified that, as she best remembered, at the bail hearing on
September 10 the fact that Rainwater was a suspect in other stolen vehicles was
discussed. If counsel is correct, the
interrogation by O'Rourke later that evening about the automobile thefts is
even more troublesome. The motion judge
said that he was unable to determine if there were such discussions on
September 10. Nevertheless, the
possibility of such discussions should have alerted the judge to the Sixth
Amendment and art. 12 issues.
(FN3.) I agree with the court that the closer
the relation of the uncharged offenses to the charged offense, the greater the
risk that questioning about the uncharged crime will interfere with the right
to counsel as to the charged offense. I
do not agree with the court, on this record, that there was neither the
intention nor the risk that the police questioning of the defendant would
disadvantage him, or interfere with his counsel's representation of him, even
in regard to the one crime for which he had been charged.
(FN4.) Because it is not unusual for appointed
counsel to have little time to consult with a client before the client is taken
back to jail, a police officer who questions a suspect represented by counsel
on the same day as the arraignment (as occurred here) should understand clearly
that he or she may not question the suspect on matters that are close to the
charged offense; to do so jeopardizes
the protections inherent in the right to counsel, and may jeopardize
prosecution of an offense that is closely related to that matter.
(FN5.)
"A supplemental report" signed and filed by O'Rourke three days later
on September 13, 1992, summarizes his interrogation of Rainwater that evening
and makes this clear. At the hearing on
the motion to suppress O'Rourke testified that during his interrogation of
Rainwater on the evening of September 10, he did not discuss with Rainwater the theft of the Toyota Corolla that
had occurred earlier that day at the Washington Heights complex. His testimony is entirely inconsistent with
his own contemporaneous written record.
The motion judge nevertheless found that no reference was made to the
September 10 theft during the interrogation.
That finding is clearly erroneous, as the Commonwealth now concedes.
(FN6.) On September 17, 1993, Rainwater
entered a guilty plea with respect to the automobile theft on September 10,
1992, the occasion on which he had been apprehended by the police and for which
he obtained counsel.
(FN7.) The "question presented" in McNeil was similarly phrased: "Did defendant's acceptance of
assistance of counsel and appearance with counsel at initial hearing on charged
offense amount to invocation of Fifth Amendment right to counsel that precluded
police‑initiated interrogation onunrelated,
uncharged offense while defendant was in continuous custody?" (emphasis added). 59 U.S.L.W. 3354 (Nov. 6, 1990).
(FN8.) In its ruling today the court describes
the "offense‑specific nature" of the Sixth Amendment as
announced in Maine v. Moulton, 474
U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Ante at 1222. Justice Brennan, the author of the Court's
opinion in Maine v. Moulton, did not
use the term "offense specific," and had no reason to. In
Moulton the only issue under consideration was the admissibility at trial
of a statement obtained by a secret government agent from the accused after he
had been indicted. I agree with this
court's discussion of the constitutional value of the rule described by Justice
Brennan. My point is a different
one: in Moulton the Court did not consider police‑initiated
interrogation on related, uncharged
offenses. That is the question in this
case.
(FN9.) McNeil was arrested in Nebraska
pursuant to a warrant charging him with an armed robbery in West Allis,
Wisconsin, and transported back to Wisconsin.
While in custody detectives interrogated him and he was charged in
connection with a murder and armed burglary that had occurred in Caledonia,
Wisconsin. McNeil, supra at 173‑174, 111 S.Ct.
at 2206‑2207.
(FN10.) I recognize that the court intends
this to be a sufficient though not a necessary condition for a violation of the
right to counsel. In my view, however,
it directs the inquiry in the wrong direction.
Whatever phrase we use to describe our constitutional test, I prefer a
rule that directs a judge to consider the factual similarities and connections
between the charged offense and the uncharged offenses, rather than a rule that
directs the inquiry toward what is necessary to prove the charged offense. See, e.g.,
State v. Sparklin, 296 Or. 85, 93, 672 P.2d 1182 (1983) ("Once an
attorney is appointed or retained, there can be no interrogation of a defendant
concerning the events surrounding the crime charged unless the attorney
representing the defendant on that charge is notified and afforded a reasonable
opportunity to attend").
(FN11.) I agree with the court that generally
there is no requirement that there be a specific finding as to each item of
unsupported testimony. Ante at ‑‑‑‑ n.
2. Where, as here, it is clear that the motion judge focused his attention on
the Fifth Amendment voluntariness of the defendant's confession, not on his
Fifth Amendment right to counsel claim, I believe a specific finding is
warranted.
(FN12.) It is not clear that what happened
here is permissible under the Sixth Amendment either. See, e.g.,
United States v. Arnold, 106 F.3d 37 (3d Cir.1997) (Sixth Amendment
prohibits police interrogation on charge of attempted murder of witness by
defendant after he was indicted for intimidation of same witness). The problem here is compounded because the
motion judge did not make findings on the crucial point whether the defendant
inquired about having his lawyer present at the interview, and because the
motion judge never considered the defendant's Sixth Amendment or art. 12
rights.