State v. Frye

McCORMICK, Presiding Judge,

concurring and dissenting.

Finding myself in disagreement with some of the majority’s analysis of the State’s first ground for review, I concur only in the result the majority reaches under this ground.

I agree with the majority that under the “unique facts of this case” and the rationale of Upton v. State, 853 S.W.2d 548 (Tex.Cr. App.1993), appellee’s Sixth Amendment right to counsel had attached by the time the telephone conversations at issue occurred, and these conversations constituted a critical stage for Sixth Amendment purposes. However, as a matter of federal constitutional law, I disagree with that part of the majority opinion which holds appellee’s “Sixth Amendment rights were violated by the State initiated questioning without the knowledge or presence of counsel.” In this case, it is unnecessary to go so far because it is enough to say the record supports a finding that appellee had not waived his Sixth Amendment right to counsel when the conversations occurred. See Brewer v. Williams, 430 U.S. 387, 405-06 , 97 S.Ct. 1232, 1243 , 51 L.Ed.2d 424 (1977).

The majority opinion holds, based on this Court’s prior holdings in Holloway v. State and Upton , that an accused may not unilaterally waive his Sixth Amendment right to counsel where the accused’s Sixth Amendment right to counsel has attached and the accused is represented by counsel. 1 See Upton, 853 S.W.2d at 553 ; Holloway v. State, 780 S.W.2d 787, 796 (Tex.Cr.App.1989). On this point Upton and Holloway should be reexamined.

Holloway was intended to decide what the United States Supreme Court meant in Patterson v. Illinois when it said, “a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect” where an accused’s Sixth Amendment right to counsel has attached and he is represented by counsel. Patterson, 487 U.S. at 290 n. 3, 108 S.Ct. at 2393 n. 3; Holloway, 780 S.W.2d at 791 ; see *332 Upton, 853 S.W.2d at 553 . Upton followed the holding in Holloway .

However, my research reveals the United States Supreme Court has not yet said what these “distinct set of constitutional safeguards” are. See, e.g., Upton, 853 S.W.2d at 553 n. 2. And, my research also reveals the United States Supreme Court has not adopted, as a matter of federal constitutional law, this Court’s holdings in Holloway and Upton at least with respect to police-initiated interrogation of an accused similarly situated to the appellee here. On the contrary, it appears the Supreme Court would hold, as a matter of federal constitutional law, that an accused can unilaterally waive his Sixth Amendment right to counsel even where the accused’s Sixth Amendment right to counsel has attached and the accused is represented by counsel. See Brewer, 430 U.S. at 405-06 , 97 S.Ct. at 1243 :

“The Court of Appeals did not hold, nor do we, that under the circumstances of this case [the defendant] could not, 2 without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. (Footnote Omitted) It only held, as we do, that he did not.”

Therefore, I would overrule Holloway and Upton to the extent they hold, as a matter of federal constitutional law, that an accused may not unilaterally waive his Sixth Amendment right to counsel where the accused’s Sixth Amendment right to counsel has attached and the accused is represented by counsel. I would hold an accused may unilaterally waive his Sixth Amendment right to counsel under such circumstances.

Most of the rationale of the majority opinion is aimed at “preserving the attorney client relationship and assuring effective and complete representation at all critical stages of the criminal process.” But, this is only one part of the balance. There are other considerations which are not mentioned in the majority opinion. For example, it should not offend the Sixth Amendment for an adult fully informed of his rights to choose to unilaterally waive his Sixth Amendment rights and talk to the police. Does the Constitution require us to treat accused persons like children or adults capable of making their own decisions? And, the accused still retains the right to preserve the attorney client relationship and assure the “effective and complete representation at all critical stages of the criminal process” by simply informing the police questioners he will not deal with them without counsel, or by keeping his mouth shut. The choice remains with the accused, and the Constitution should not relieve a fully-informed accused of the consequences of voluntarily talking to the police without counsel.

“.... [T]he living witness is an individual human personality whose attributes of will, perception, memory and volition 3 interact to determine what testimony he will give.”

Oregon v. Elstad, 470 U.S. 298, 310 , 105 S.Ct. 1285, 1293 , 84 L.Ed.2d 222 (1985).

The majority opinion also fails to discuss the latitude the Constitution gives to law enforcement agencies in the legitimate exercise of their duties and the importance of the “need” for confessions for effective law enforcement. See, e.g., Miranda v. Arizona, 384 U.S. 436, 480-81 , 86 S.Ct. 1602, 1631 , 16 L.Ed.2d 694 (1966); see also Elstad, 470 U.S. at 298 , 105 S.Ct. at 1285 (voluntary statements are a proper element in law enforcement). The consideration here is whether the Constitution excludes from the prosecution’s ease a truthful and voluntary confession from an accused who is fully informed of his rights and who voluntarily chooses to talk to the police even though the accused’s Sixth Amendment right to counsel has attached and he is represented by counsel. See, e.g., Elstad, 470 U.S. at 305-10 , 105 S.Ct. at 1291-93 . I would hold the Constitution does not require the exclusion of such statements.

Based on the foregoing, I would overrule the State’s first ground for review simply because the record supports a finding that appellant did not waive his Sixth Amendment right to counsel.

Additionally, I join Judge Keller’s dissenting opinion.

. A similarly situated accused person who is unrepresented by counsel may unilaterally waive his Sixth Amendment right to counsel. See, e.g., Patterson v. Illinois, 487 U.S. 285, 291 , 108 S.Ct. 2389, 2394 , 101 L.Ed.2d 261 (1988).

. Emphasis in original.

. Emphasis in original.