Wilkerson v. State

McCORMICK, Judge,

dissenting.

I agree with the majority that appellant did invoke his Miranda right to have counsel present at interrogation. Stone v. State, 612 S.W.2d 542 (Tex.Cr.App.1981). And I agree that the questioning of appellant by Burkham, Beale, Williams and Zoch in Zoch’s office was improper. However, I strongly believe that any taint caused by that improper questioning was removed when appellant consulted with his attorney before he gave his confession.

The record shows that during the “discussion” in Zoch’s office appellant agreed to give the police information if he would first be permitted to talk with Pat Fantich, the wife of one of the victims. Appellant and several police officers then proceeded to Mrs. Fantich’s home, picked her up and proceeded to the Special Crimes Bureau.

Assistant District Attorney Mike Hinton testified that he received information that afternoon that appellant wanted to talk with him. After receiving this information, he made arrangements for appellant’s attorney, Fred Dailey, to come to his office. Hinton testified that Dailey was present in the Special Crimes Bureau before he began talking with appellant. He also testified that appellant was aware his attorney was present, but appellant never asked to see his attorney. Hinton testified that he talked with appellant for five or ten minutes. Appellant then talked with Mrs. Fan-tich for approximately thirty minutes. While they were talking, Hinton went in and talked with appellant’s attorney, Fred Dailey.

“Q. At the time that you talked with Fred Dailey, did he ask you where his client was?

“A. He knew where he was. He was around the hall in your office.

“Q. And approximately how far was that away from where Mr. Dailey was sitting?

“A. Thirty-five feet, I guess.”

After appellant concluded his talk with Mrs. Fantich, he again talked with Hinton.

“A. ... Our talk, between J.C. (appellant) and myself was not about the elements of the crime. It was about personal feelings that he had and fears and thoughts and decisions that he was having to make at that time.”

Hinton testified he then left the room and proceeded to his own office where he talked with Dailey and Judge I.D. McMaster, who was there waiting to pick up his wife.

Earl Musick, a detective with the Houston Police Department, testified that he brought Mrs. Fantich and appellant to the Special Crimes Bureau on that Friday. After appellant and Mrs. Fantich talked and appellant had talked with Hinton, appellant began telling his story. As appellant began dictating his confession, he asked to go to the restroom.

“Q. During this process of going to the restroom, did you encounter any person who was not involved in law enforcement or attached to the District Attorney’s Office?

“A. Yes, sir, Fred Dailey.

“Q. Did Fred Dailey have a conversation with Claude Wilkerson in your presence?

“A. Yes, sir, he did.

“Q. Can you tell us what you overheard there of that conversation?

“A. Fred Dailey asked Claude if— He said, ‘Claude, don’t you want to talk to me?’ Claude replied, ‘No.’

“A. Fred asked Claude if he was sure that he did not want to talk to him and Claude said, ‘Yes.’

Fred asked Claude if he knew what he was doing. Claude said, yes, he did. He asked Claude, ‘Are you doing what you want to do?’ Claude then said, T do not guess anyone would want to give a confession, but you know, I have to.’

And Fred said, ‘Now, wait a minute. You have to?’ And he said by this, *795 ‘Are you saying that they are threatening you? Are they making you do something you don’t want to do?’ Claude said ‘No. They have nothing to do with it. It’s my own personal reasons. You know I have to tell the truth.’

And Fred said, ‘Well, you know what I have advised you and are you aware of all this?’ And he said, ‘Yes.’

The rest of the conversation related to Fred, told him that he was in Special Crimes, had been in Special Crimes and would be available if he changed his mind and wanted to talk to him at any point that he was going to go ahead and remain there at Special Crimes.”

Musick went on to state that appellant then gave a written confession.

Fred Dailey, appellant’s attorney, testified that on Friday, January 27,1978, when he appeared for a hearing concerning appellant, he was instructed to go to the Special Crimes Bureau. He arrived there at approximately 1:30 p.m. Dailey testified that when he arrived he was told appellant was there. When Dailey asked if appellant had asked for him, he was told “no.” Sometime during the afternoon, Dailey ran into appellant at the water fountain.

“Q. At this point, did you have a conversation with your client?

“A. Yes.

“Q. What did you ask your client?

“A. ... But, I know I asked if he was doing what he wanted to do. And he replied, ‘No, not really.’ And I said, ‘Then, stop it.’ And he said, ‘No, I have to. I have to do it.’ And I said, ‘Well, then, what you are really saying is, you are doing what you want to do but you don’t like it?’ and he said, ‘Yeah, I guess so.’

“Q. At that time, did he ask to speak with you?

“A. No.

“Q. And you were having a face-to-face conversation with him?

“A. Yes.

“Q. Was that all of the conversation that you recall?

“A. I said, ‘Well, I’ve been here and I will be here if you want me. I’m here.’ ”

Dailey further testified:

“Q. During this entire period of time, you had access to Claude Wilkerson or he had access to you?

“A. Yes.

“Q. Were you satisfied after you had the conversation with Claude at the water fountain in the Special Crimes Division on Friday, that he did not want to see you?

“A. Yes.”

In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the Supreme Court of the United States held that, when an accused has expressed a desire to deal with police only through counsel, the accused is not subject to further interrogation until counsel has been made available to him, or unless the accused himself initiates further communication, exchanges or conversation with the police. As Chief Justice Warren wrote in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966):

“Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.” 86 S.Ct. at 1625 .

Where, as in the instant case, the appellant talked with his attorney before he gave his confession, and still insisted on making a confession, I feel that the goals of Miranda were met. Appellant made a knowing and counseled confession. Appellant’s own attorney was convinced that appellant was aware of what he was doing and was cooperating with police knowingly and voluntarily. Under these circumstances, the taint was removed. Appellant’s confession was not taken in violation of his Fifth Amendment right to counsel.

For the above reasons, I dissent.

W.C. DAVIS, MILLER and CAMPBELL, JJ., join in this dissent.