“An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he or she has previously retained counsel does not necessarily render inadmissible an otherwise voluntary statement made by the defendant in his or her counsel’s absence.”
How later courts described this case
- “An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he or she has previously retained counsel does not necessarily render inadmissible an otherwise voluntary statement made by the defendant in his or her counsel’s absence.”
Written by the judges who cited it.
The opinion
Lewis, J.,
dissenting: I respectfully dissent from the majority opinion insofar as it holds that the Rasheem Coleman’s confession to the police violated his Sixth Amendment rights and, thus, should be deemed inadmissible as evidence against him.
There were two different versions of the police contact with Tiffany Mayson’s grandmother. If one were to believe the testimony of the police officers, nothing objectionable can be found as to their contact, and there is no Fifth or Sixth Amendment violation. It is perfectly obvious that the trial court, which was, after all, the finder of fact, chose to believe the testimony of the police officers and not that of the grandmother. The majority opinion simply ignores the trial court’s findings of fact and bases its decision on its belief of the grandmother’s version. As an appellate court we are not finders of fact and, in my judgment, the majority opinion violates our standard of review.
Our standard of review requires that we give great deference to the factual finding of the trial court. In my opinion, that has not been done in this case.
*1005 I believe the facts as testified to by the prosecution witnesses show that the police officers and prosecutors did not violate any of the defendant’s rights. In the first instance, the deputy district attorney, to whom the defendant’s girlfriend, Tiffany Mayson, had been making phone calls, was shifted off of the case and it was assigned to another assistant district attorney. Mayson was indicating in messages to die deputy district attorney that she wanted to discuss possible plea agreements for the defendant.
The prosecutor, quite appropriately, decided not to return May-son’s telephone calls. Instead, she asked the Wichita police to advise Mayson to redirect her inquiries to the attorney then in charge of the prosecution. The police detectives testified that they made an effort to find Mayson but were unable to do so. They ultimately spoke with her grandmother, who informed them that Mayson was “laying low.” After receiving this information, the detectives asked Mayson’s grandmother to pass along the message that Mayson’s questions could be addressed to Assistant District Attorney Kaufman and not to Deputy District Attorney Parker. The grandmother mentioned to the detectives that tire defendant was a good young man and he wanted to cooperate or make a deal. The detectives appropriately informed her that the defendant had already had counsel appointed and that they could not discuss it with him. They advised her that if he wanted to talk, the defendant had to contact them.
The grandmother’s recollection of the conversation was different. According to her, the detectives told her they thought that the defendant was a good kid and did not have anything to do with the robbery. She also claimed the detectives told her they wanted the defendant to contact them so they could make a deal. She then relayed that message to the defendant.
It is from the grandmother’s recollection of events only that the majority bases its decision. It concludes the detectives specifically asked the defendant to contact them. This is what the grandmother testified to; the detectives testified to the contrary.
In any event, the defendant received this information and did, in fact, contact the detectives, waive his Miranda rights, and admit *1006 in writing that he had initiated the contact with the police. He then admitted his involvement in the robbery.
Based on the testimony of the police officers and other prosecution witnesses, I see no objection whatsoever to the admission of the defendant’s confession. The trial court denied tire defendant’s motion to suppress, noting the issue came down to the credibility of witnesses. The trial judge believed the police officers, she believed the defendant and his girlfriend solicited the police interview, and she admitted the tape of the defendant’s confession into evidence. The majority concedes that the defendant’s Fifth Amendment right was not violated and that the defendant had waived his Fifth Amendment right.
The only way in which the defendant’s statement can be excluded is based on the Sixth Amendment right to counsel, which is seldom analyzed or approached in cases of this nature.
In Jaclcson v. United States, the United States Supreme Court held that any waiver of counsel after counsel has been appointed during a police-initiated custodial review is ineffective.
The majority opinion admits that the issue on the Sixth Amendment right to counsel comes down to whether the State’s conduct constituted an initiation of contact. The majority finds that it did, a finding which I believe to be totally without support in the evidence. The majority reaches the conclusion that the prosecution and the police officers used knowledge to extract an uncounseled confession.
The majority opinion ignores the fact that the defendant in his Miranda rights waiver acknowledged in writing that he had initiated the contact with the police. The testimonies of the police officers indicate it was the defendant and not them who initiated the contact. It is only if one believes the testimony of the grandmother and ignores the balance of the evidence in this case that one can even reach a tentative thought that the police extracted this confession from the defendant or that the police initiated the contact with the defendant.
There is some suggestion in the majority opinion that it makes a difference whether the defendant wanted to plea bargain or make a statement. I see no difference. For whatever reason, the defend *1007 ant initiated the contact with the police and waived his Sixth Amendment right.
I believe the majority opinion is wrong and that it violates our standard of review. I further believe it violates admitted facts made by the defendant in his waiver of a Miranda hearing. In essence, I believe the majority has invaded the trial court’s right as the finder of fact, and I would affirm the trial court and the defendant’s conviction.