The opinion
Conley Byrd, Justice, dissenting. I dissent only from the affirmance of the conviction of Willie Joe Childs, based on the holding in Miranda v. Arizona, 384 U. S. 436 (1966). At page 471 of the Miranda decision the court said:
“Accordingly we bold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
“If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney.”
At page 473 the court elucidated further as follows:
“Once warning’s have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the Night to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during’ any subsequent questioning. If the individual cannot obtain an attorney and lie indicates that he wants one before speaking to police, they must respect his decision to remain silent.”
Commencing on page 160 of the transcript, the record shows the following proceedings before the court:
“Q. Did you advise him of his civil rights?
A. Yes, sir, I did.
Q. How did you do that?
A. I advised Childs that he didn’t have to tell me anything unless he had an attorney present—
Q. Did you advise him if he did tell you something that it might be used against him?
A. Yes, sir, I did.
Q. What else did you tell him?
A. I told him if he didn’t have funds for an attorney I would be glad to get him one.
Q.' And what was his reply to these assertions?
MR. HARTJE: Your Honor, I’m going to object to any testimony that he might give in view of the fact that Willie Joe Childs did not have an attorney present at the time of the statement.
MR. McCLINTON: That is not a proper and correct statement of the law, Your Honor.
THE COURT: The objection will be sustained. Go ahead.
MR. McCLINTON: I beg your pardon.
THE COURT: To that portion.
MR. McCLINTON: What portion?
THE COURT: That portion which an attorney was not present at the time. The witness will he advised.
Q. Will you go ahead, Mr. Mitchell, and tell us what further you found through your investigation?
MR. HARTJE: Now, I’m goingto object. The Judge sustained my motion.
THE COURT: As to the objection that there is no attorney present at that time. Let’s go in Chambers.
(The Court, attorneys, and court officials retired to Chambers, where the following things were said and done:)
THE COURT: The rule is when you arrest a man you advise him of his rights and ask him if he wants a lawyer, and if he says he does not — It is not clear here in this case whether he did or didn’t.
MR. McCLINTON: Whether he did or did not say he wanted an attorney.
THE COURT: That’s right.
(The Court, attorneys, and court officials returned to the courtroom, where the following things were said and done in open Court:)
Q. When you asked Willie Joe Childs whether or not he wanted an attorney, what was his reply?
A. He said that he did, and he agreed to go ahead and talk to me.
Q. He agreed to go ahead and talk to you?
A. Yes, sir.
Q. After you asked Mm if lie wanted an attorney and yon advised Mm of Ms other rights yon have outlined?
A. Yes, sir.”
Thereafter, Trooper Mitchell was permitted to testify about his conversation with Willie Joe Childs. Appellant’s objection to Trooper Mitchell’s testimony was renewed as a motion for mistrial. (See pages 166 and 167 of the record.)
Trooper Mitchell did not comply with the Miranda case when he continued the discussion with Childs following Childs’ indication that he did wish an attorney present. Nor can I find anything in the record to show a waiver -within the limits set by the Miranda case. The matter of 'a waiver in such instances is fully discussed in the Miranda case at page 475 as follows:
“If 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. Escobedo v. Illinois, 378 U. S. 478, 490, n. 14 . This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U. S. 458 (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.
‘ ‘ An 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. But a valid waiver will not be presumed simply from the silence of the accused after warning's 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 (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 a waiver.’ ”
Obviously, a person in custody can waive his right to have an attorney present during interrogation. But in view of the strong language quoted above from the Miranda case, I can not find such a waiver in this instance. Instead, it appears that the trooper, after going into the formalities of stating to Childs his constitutional rights, persisted in talking him out of his rights by continuing his interrogation after Childs had made known his desire to have counsel present during the interrogation.
It is true that counsel for appellant Childs did not save his exceptions to the rulings of the trial court, which under our antiquated system, 15 Ark. L. Rev. 69 , is considered necessary for review in criminal cases before this court. However, as has been pointed out by the United States Supreme Court in Henry v. Mississippi, 379 U. S. 443 (1965), the procedural failure to save one’s exceptions to a trial court’s ruling on an objection does not necessarily waive one’s federal rights. When we fail to recognize this adjudicated law in cases involving claims of federal rights here, we put this court in the position of having placed its stamp of approval on a conviction that the federal district courts will be required to review on a habeas corpus action.
Under the rulings of Townsend v. Sain, 372 U. S. 293 (1963), and Henry v. Mississippi, supra, courts in habeas corpus actions are directed to disregard procedural defaults which do not affect the substantive rights of the parties. Our failure to recognize United States Supreme Court rulings in such matters puts the federal district judges of our state in the position of writing opinions and fact findings overruling, in effect, opinions by this court. Therefore, I maintain that this court, in ruling on issues which raise federal questions, should treat the issues in the same manner that the federal district court will be required to treat them, so that the federal district judges may rely on the considered opinions which we have given to the same records.
Of course, the illegally obtained evidence from appellant Childs in this case does not affect the convictions of appellants Frankie Bussell Matthews and Tommy Matthews. Wong Sun v. United States, 371 U. S. 477 (1963).
For the reasons, stated, I would reverse and remand for a new trial as to Willie Joe Childs.
Brown, J., joins in dissent.