People v. Neal

*88 KENNARD, J., Concurring.

According to the majority, the trial court should have suppressed defendant Kenneth Ray Neal’s confessions to the murder of Don Collins for two closely related reasons: (1) the confessions themselves were involuntary (see Malloy v. Hogan (1964) 378 U.S. 1 [ 12 L.Ed.2d 653 , 84 S.Ct. 1489 ]); and (2) the confessions were obtained in violation of Edwards v. Arizona (1981) 451 U.S. 477 [ 68 L.Ed.2d 378 , 101 S.Ct. 1880 ] (Edwards) because defendant did not voluntarily initiate the conversations at which he confessed. I agree. I write separately to note that the confessions also appear to be inadmissible for another and, in my view, more compelling reason, namely, the lack of a knowing and intelligent waiver of the right to counsel before the confessions. That was a point addressed in Edwards , but one that the majority here does not discuss.

In Edwards , the police took the defendant into custody and advised him of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ].) When he said he wanted to speak to an attorney, the police stopped questioning him. The next day, two other officers readvised him of his rights. This time the defendant agreed to talk, and he confessed to robbery and murder. The trial court admitted the confession, and the defendant was convicted of those crimes; the Arizona Supreme Court affirmed the judgment. The United States Supreme Court, however, reversed the Arizona Supreme Court’s decision for two reasons. The majority here discusses the second reason, which is this: Once a suspect in custody invokes the right to counsel, the suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” ( Edwards, supra, 451 U.S. at pp. 484-485.) Just as pertinent here, however, is the first reason the high court gave for reversing the Arizona Supreme Court’s decision: the failure of that court and the trial court to consider whether the defendant had knowingly and intelligently waived the right to counsel.

In Edwards , the United States Supreme Court faulted the trial court for finding the defendant’s “admission to have been ‘voluntary,’ . . . without separately focusing on whether [the defendant] had knowingly and intelligently relinquished his right to counsel.” (Edwards, supra, 451 U.S. at p. 483 , italics added.) The court stressed that “waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege . . . .” (Id. at p. 482.) The high court was just as critical of the Arizona Supreme Court for looking only to the voluntariness of the admission, without also considering whether the defendant “understood his right to counsel and intelligently and knowingly relinquished it.” (Id. at p. 484.)

*89 Here, too, the Court of Appeal looked only to the voluntariness of defendant’s confessions, without separately considering whether he knowingly and intelligently waived his right to counsel. 1 The court may have been led astray by the parties’ briefs. Defendant’s brief merged the issues together, arguing that he “made his incriminating statements involuntarily, and that his waiver of his Miranda rights was not knowing, intelligent, or voluntary.” The Attorney General’s brief argued that the confessions were voluntary, but it never considered the issue of whether defendant knowingly and intelligently waived his right to counsel. As the high court stressed in Edwards, supra, 451 U.S. 477 , those two questions are analytically different and must be separately addressed. (See also Moran v. Burbine (1986) 475 U.S. 412, 421 [ 89 L.Ed.2d 410 , 106 S.Ct. 1135 ].)

Here, the argument that defendant did not knowingly and intelligently waive the right to counsel is far stronger than it was in Edwards, supra, 451 U.S. 477 . Defendant made nine attempts to invoke his right to counsel. Each time, the interrogating officer ignored the request. By doing so, the officer unmistakably implied that defendant, an 18-year-old high school dropout with little experience of the criminal justice system, had no right to counsel that the officer was bound to respect. A right that is not honored when invoked is no right at all. Under these circumstances, defendant’s later waiver of the right to the assistance of counsel during interrogation was “an empty ceremony” (Collazo v. Estelle (9th Cir. 1991) 940 F.2d 411, 423 (in bank)), and was not knowing and intelligent.

At trial defendant focused almost entirely on the question of voluntariness. Because I agree with the majority that the confession was involuntary, I do not address whether defendant adequately preserved for appeal the question whether he knowingly and intelligently waived his right to counsel.