Charles v. State

DISSENTING OPINION

ONION, Judge.

Appellant’s trial commenced on August 30, 1966, after the effective date (June 13, 1966) of the decision of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 . See Johnson v. State of New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 . Therefore, in determining the admissibility of appellant’s written statement we must consider not only whether ' state statutes have been complied with, but also whether the requirements of Miranda have been met. The majority opinion concludes that there was a substantial compliance with the state statutes in effect at the time. 1 Articles 15.17, 38.22, V.A.C.C.P.

Be that as it may, it is clear from the record before us that the requirements of Miranda were not met prior to the admission of appellant’s statement.

Relating to custodial interrogation, the Supreme Court held in Miranda that an accused “prior to any questioning” must be given the following warnings which are now encompassed under the constitutional privilege against self-incrimination:

(1) That he has a right to remain silent.

*914 (2) That any statement he does make can and will 2 be used as evidence against him in a court of law.

(3) That he has the right to consult with counsel before answering any questions.

(4) That he has the right to have counsel present with him during interrogation.

(5) That if he cannot afford an attorney, one will be appointed for him without cost, prior to the questioning, if he so desires. 3

The Supreme Court made it plain that these warnings are an “absolute prerequisite” to any police interrogation and to the admissibility in evidence of any confession or statements made by the accused during the period of in-custody interrogation. Only if, after the giving of these Miranda warnings, the accused makes a “voluntary, knowing, and intelligent” waiver of his rights, may the police authorities initiate-their interrogation.

Therefore, in any trials commencing after June 13, 1966, the prosecution has the burden of not only showing that all the proper Miranda warnings were given, but the burden also of initially coming forward and proving that after such warnings the accused effected a “voluntary, knowing, and intelligent” waiver of his rights. The Chief Justice stated in the majority opinion of Miranda: “But unless and until such warnings and waiver are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.”

In Miranda, the Chief Justice further wrote:

“This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.”

The opinion also states that “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” (Emphasis supplied)

This perhaps expresses the traditional rule that the waiver of constitutional rights will not be “lightly inferred,” and the courts will “ ‘indulge every reasonable presumption against [the] waiver’ of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 . It appears that the “waiver” referred to may be defined as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, supra.

Miranda is not as explicit as it might have been regarding the issue of whether the accused, after receipt of the warnings, must make an express, affirmative statement of his intention to waive his rights in order to constitute an acceptable waiver.

The majority opinion in Miranda did say that: “[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. *915 But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884, 890 , 8 L.Ed.2d 70 (1962), is applicable here:

‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’

“See also Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.”

Further, the court said “[n]o effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.” This language would certainly appear to necessitate some proof that the accused affirmatively stated he desired to relinquish his rights. 4 The dissenting opinions of Mr. Justices Clark 5 and Harlan 6 indicate that this is what is required.

*916 From the foregoing, as well as the record before us, it is clear that appellant was not given the full and complete Miranda warnings prior to the taking of his statement, nor has it been shown that the State has sustained its burden of showing an “affirmative” waiver. 7 Further, no proof was adduced as to the appellant’s knowledge or understanding for an intelligent waiver. In all fairness to the law enforcement officers and the able district attorney, it should be noted that the confession was taken on March 17, 1966, several months prior to the Miranda decision.

While it appears that the appellant was given the warnings as set forth in Article 15.17, supra, six (6) days prior to the confession, as well as the warning required by Article 38.22 of the person to whom the confession was given, 8 it simply does not appear from this record that appellant was informed in connection with his right to retained or appointed counsel that this included the right to consult with counsel prior to and during any interrogation if he so desired. Further, there is no showing in the record that he affirmatively waived his right to counsel and his privilege against self-incrimination after his rights were fully explained. It is true that the appellant does not appear to have requested counsel, but where the assistance of counsel is a constitutional requisite to the protection of an accused’s Fifth Amendment privilege in the fact of interrogation, the right to be furnished counsel does not depend upon a request. Miranda, 384 U.S. 436, at p. 471 , 86 S.Ct. 1602, at p. 1626 , 16 L.Ed.2d at p. 722. See also Swenson v. Bosler, 386 U.S. 258 , 87 S.Ct. 996 , 18 L.Ed.2d 33 .

The importance of the Miranda requirement, that an accused be informed of his rights (in “effective and express” terms) and thereafter “affirmatively” waive such rights in determining whether a statement is truly the product of a free choice is demonstrated by the facts in the case at bar. Here an indigent 18-year-old Negro high school student was “requested” to go to Dallas over 150 miles from his home at Karnack with two peace officers in a county patrol car. There in a strange city at the office of the Department of Public Safety this appellant who had no prior contact with police took a lie detector test. What he was told of the results of the test is not reflected by the record, but he was thereafter arrested. Subsequently the appellant, surrounded by law enforcement officers, without parents or friends, gave the statement now complained of. Two non-police officers witnessed the signing of the confession, one of whom testified and stated that he could not recall any warnings being given after his arrival. The exact length of the interrogation prior to confession does not appear in the record. 9 It is shown that the appellant and the officers were in Dallas *917 when the district attorney arrived from Austin between 9 and 10 a. m. prior to the polygraph test. Appellant’s statement was given some time in the afternoon, the exact time not revealed. It is observed that the vital part of the prior warning given to appellant and relied upon by the State was orally imparted to appellant six (6) days earlier, 10 and given primarily to satisfy the regulation of the Texas Department of Public Safety as to the operation of polygraph tests. As earlier noted 11 the appellant was never taken before a magistrate in Dallas County following his arrest in violation of Article 14.06, V.A.C.C.P., nor does the record reflect that he was taken before a magistrate after his return to Harrison County. 11a

Further, it is not shown that it was made clear to the appellant that the mere fact that he had taken a polygraph test or may have answered some questions or volunteered some statements did not deprive him of the right to refrain from answering any further inquiries until he had consulted with an attorney and thereafter consented to be questioned. 12

The above-described facts readily demonstrate the similarity of the case at bar to the quartet of cases that comprise the Miranda decision. The record of the case at bar, like those of the “quartet,” does not evince overt physical coercion or patent psychological ploys, but in this connection note that the Supreme Court said:

“In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of these cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent * * * ” Miranda, 384 U.S. at p. 457 , 86 S.Ct. at p. 1618 , 16 L.Ed.2d at p. 713 .

Under these circumstances, the Court said: “This atmosphere carries its own badge of intimidation.”

The Miranda opinion made it plain that the interviewing agent must exercise his judgment in determining whether an individual waives his right to counsel, but the constitutional basis of that right makes the standard for waiver necessarily high. The *918 ultimate responsibility for resolving this constitutional question lies with the court. See Miranda, Footnote No. 55.

It may well be that there was a substantial compliance with the requirements of the Miranda decision, but it is not reflected in the record before us. It is obvious that the case at bar was not tried with the Miranda decision in mind. Upon a re-trial the proper warnings and waiver might well be demonstrated.

The harshness of the application of the Miranda decision to a case like the one at bar is apparent, but the Supreme Court’s reasons for making it applicable to cases commencing after June 13, 1966, is fully set forth in Johnson v. State of New Jersey, supra.

In passing on the admissibility of a confession, it is as much the duty of this Court to protect the appellant’s rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution as it is to protect his rights under our State Constitution. In this inquiry, this Court is bound by the interpretation placed upon the Federal Constitution by the Supreme Court of the United States.

From what has been said, it should be obvious that it is this writer’s humble opinion that the Miranda decision requires that the case at bar should be reversed and remanded.

There is more however. It also appears to be appellant’s contention that his Fourteenth Amendment rights to a fair trial were violated by the trial judge’s failure to determine the voluntariness of his alleged confession prior to its admission into evidence before the jury, as required by Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 ; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345 ; Article 38.22, (b), V.A.C.C.P.

After the selection of the jury and prior to the reading of the indictment, a hearing was held to determine the voluntariness and admissibility of appellant’s statement. At the conclusion of the hearing, the court merely stated “I am going to overrule your motion, let the record so show, to suppress the introduction of this voluntary statement, alleged voluntary statement.” Appellant’s objection to introduction of the confession before the jury was likewise overruled. Thereafter the court failed to enter a written order stating his findings as required by the mandatory provisions of Article 38.22, (b), supra, in effect at the time. It is not clear if the trial judge decided voluntariness, one way or the other, or if he did, what standard was relied upon. Compare Boles v. Stevenson, 379 U.S. 43 , 85 S.Ct. 174 , 13 L.Ed.2d 109 . There was certainly no clear cut and reliable determination of the voluntariness of the confession.

In Lopez v. State, supra, this Court, taking heed of Jackson v. Denno, supra, stated:

“In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. Upon request, such hearing shall be held and the court’s ruling made in the absence of the jury. Unless the trial judge is satisfied that the confession was voluntarily made he shall exclude it. If the confession has been found to have been voluntarily made and held admissible by the Court, it is recommended that the trial judge enter an order stating his findings, which order should be filed among the papers of the cause but not exhibited to the jury.”

Section (b), Article 38.22, supra, wrote into statutory laws the holdings of Lopez and Jackson. Now see Article 38.22, Sec *919 tion 2, V.A.C.C.P. (Acts 1967, 60th Leg., R.S., Chapter 569, p. 1732, 1741, effective August 28, 1967).

Even in absence of the statute the court’s action did not comply with the rule of Jackson v. Denno, that the trial court’s conclusion, as to voluntariness, must, at least, appear from the record with unmistakable clarity. See Sims v. State of Georgia, 385 U.S. 538 , 87 S.Ct. 639 , 17 L.Ed.2d 593 . 13

For the reasons stated above, I cannot agree with' the conclusions in the majority opinion that the requirements of Miranda have been met, or that express findings were not required as there was no issue of voluntariness raised.

I respectfully dissent.

. It appears to be tbe State’s position that appellant was not under arrest when taken before the magistrate in Harrison County; that he voluntarily accompanied the officers to Dallas; that only after the polygraph test indicated he was guilty was he arrested (without warrant) in Dallas County. If this be true, then the State and the majority overlook the provisions of Article 14.06, V.A.C.C.P., in effect at the time, which required that a person so arrested “shall” be taken “immediately” before a magistrate in the county of the arrest, who is required to perform the duties set out in Article 15.-17, V.A.C.C.P. The record reflects that appellant was never taken before any magistrate in Dallas County.

. It is observed that Articles 15.17 and 38.22, supra, in effect at the time of appellant’s statement as well as the recent amendments (Acts 1967, 60th Leg., R.S., Chapter 695, pp. 1732, 1736, 1740) thereto use the word “may” with regard-to the warning as to the use of the statement in court.

. Most of these required warnings are familiar to Texas procedure. See Articles 38.22, 15.17, Y.A.C.C.P. and their forerunners. Many commentators and courts combine warnings (3) and (4) above, and refer to Miranda as requiring a four-fold warning.

.At the top of Miranda’s statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and “with full knowledge of my legal rights, understanding any statement I make may be used against me.” In rejecting the validity of the alleged “waiver” contained in Miranda’s written statement, the Supreme Court held that “[t]he mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.” Miranda, 384 U.S. at p. 492 , 86 S.Ct. at p. 1637 , 16 L.Ed.2d at p. 734 .

In People v. Keesler, 53 Misc.2d 268 , 278 N.Y.S.2d 423 , the court found that the Miranda warnings were clearly and succinctly stated, but that no express waiver was given until the statement was signed, nor was any proof adduced as to the defendant’s knowledge or understanding for intelligent waiver. In concluding, under the circumstances, that there had been a failure of proof beyond a reasonable doubt that the defendant had knowingly and intelligently waived his rights as to any of the admissions or confessions, the Court stated: “With no prior articulation of waiver, the mere inclusion of words of waiver in the body of an exculpatory explanation amounting to a legal confession after four hours in almost continuous police custody fails to meet the requirements laid down in Miranda, supra.” (Emphasis supplied)

See also George, B. James, Jr.: “Constitutional Limitations on Evidence in Criminal Cases.” Institute of Continuing Legal Education, Ann Arbor, Mich., 1966, pp. 119, 120; Sobel, N.: “The New Confession Standards—Miranda v. Arizona.” Gould Publications, Jamaica, N.Y., 1966, p. 75; George, B. James, Jr., Ed.: “A New Look at Confessions: Escobedo —The Second Round.” Institute of Continuing Legal Education, Ann Arbor, Mich., 1967, p. 76; Thompson, J.: “Confessions : Required Warnings.” Traffic Digest and Review, Traffic Institute, Northwestern University, November, 1966, p. 20; American Jurisprudence, Proof of Pacts, Anno., Vol. 19, pp. 1, 42, 68 (Waiver of Rights Under Miranda Decision).

The Texas Legislature has recognized the requirements of Miranda in amending Articles 15.17 and 38.22, V.A.C.C.P. (Acts 1967, 60th Leg., R.S., Chapter 659, pp. 1732, 1736, 1740, effective August 28, 1967). The amendment to Article 38.22 (when oral and written confessions shall be used), supra, provides in part:

“The defendant must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement.”

. Miranda, 384 U.S. at p. 502, 86 S.Ct. at p. 1642, 16 L.Ed.2d at p. 739. “Indeed, even in Escobedo the Court never hinted that an affirmative ‘waiver* was a prerequisite to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel —absent a waiver — during interrogation was required; that a waiver can be withdrawn at the will of the accused * ⅜ ⅜ ”

. Miranda, 384 U.S. at p. 504, 86 S.Ct. at p. 1643, 16 L.Ed.2d at p. 741. “To forgo *916 these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden.”

.Neither the record nor the confession itself reflects that the appellant, after the warnings that were given, indicated in any way that he did not want a lawyer and decided to forgo his privilege against self-incrimination; -that he understanding^ rejected the offer with the knowledge of the potential ramifications and consequences of his decision. The fact the confession included a typed-in phrase that he was giving statement “voluntarily” is not sufficient in and of itself to constitute an affirmative waiver. Compare Footnote No. 4. For an excellent discussion of proof necessary for proof of an “affirmative” waiver see “Waiver of Rights Under Miranda,” American Jurisprudence, Proof of Facts, Yol. 19, p. 1.

. While the statutory warning of former Article 727 (now Article 38.22, supra) appears to have been given by the district attorney, the person to whom the confession was given, some conflict in the testimony appears as to whether the district attorney advised the appellant in Dallas as to his right to counsel as reflected in the confession. This disputed issue was not resolved by the trial judge following the hearing on the voluntariness of appellant’s statement.

. “Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or in *917 communicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so.” Miranda, 384 U.S. at p. 476 , 86 S.Ct. at p. 1629 , 16 L.Ed.2d at p. 724 .

It is also observed that the Supreme Cour£ said:

“ [A] ny evidence that the accused was threatened, tricked or cajoled into waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Miranda, 384 U.S. at p. 476 , 86 S.Ct. at p. 1629 , 16 L.Ed.2d at p. 725 .

. Note that in Miranda, 384 U.S at p. 469, 86 S.Ct. at p. 1625, 16 L.Ed.2d at p. 720, the court said: “More important, whatever the background of the person interrogated a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.” (Emphasis supplied)

. See Footnote No. 1.

. See Miranda, 384 U.S. at p. 463 , 86 S.Ct. at p. 1622 , 16 L.Ed.2d at p. 717 . See also Miranda, Footnote No. 32.

. Miranda makes it clear that the accused should be advised of his right to terminate the interrogation at any time, even if he has been fully warned and has affirmatively waived his rights. Note that the amendment to Article 15.17, V.A.C.C.P. (Acts 1967, 60th Leg., R.S., Chapter 659, pp. 1732, 1736 effective August 28, 1967) requires, among other things, that magistrate warn the accused of his right to terminate the interview at any time.

. Normally, the failure of the trial court’s findings as to voluntariness to appear in the record with unmistakable clarity does not necessarily require a new trial but rather a hearing as provided by Jackson v. Denno, 378 U. S. at pp. 393-396, 84 S.Ct. 1774 , 12 L.Ed.2d 908 . See Sims v. State of Georgia, supra. In the case at bar, however, there was also a violation of a state statute. (Article 38.22(b) V.A. C.C.P.)