State v. Rose , 1992 Me. LEXIS 35 ( 1992 )

WATHEN, Justice.

The defendant, who was confined in an Arizona prison at the time of his Maine indictment and was returned to Maine to stand trial pursuant to the Interstate Compact on Detainers (ICD), appeals his convictions in the Superior Court (York County, Brodrick, J.). He contends that his trial did not start within the 180-day time period prescribed by the ICD and that inculpatory statements he made to the police officer bringing him back to Maine should not have been admitted at trial. We find no violation of the ICD but conclude that defendant’s statements should have been suppressed. We vacate the convictions.

On November 6, 1989, a grand jury indicted defendant Dana Rose on one count each of gross sexual misconduct, 17-A M.R.S.A. § 253 (Supp.1988), unlawful sexual contact, 17-A M.R.S.A. § 255 (Supp. 1988), and burglary, 17-A M.R.S.A. § 401 (1983). The State of Maine thereafter lodged a detainer against defendant, then a prisoner at the Arizona State Prison in Tucson. Pursuant to the ICD, defendant subsequently was brought back to Maine to stand trial here. On a jury verdict, the Superior Court entered a judgment of conviction against defendant on all three counts. This appeal follows.

I.

Time Limitation of Interstate Compact on Detainers

Defendant first challenges the denial by the Superior Court {Cole, J.) of his motion to dismiss the indictment with prejudice. He contends that he was not brought to trial within the time limitations laid down by the ICD, 34-A M.R.S.A. §§ 9601-9609 (1988), and thus the indictment must be dismissed pursuant to 34-A M.R.S.A. § 9605(3). We reject his contention.

The ICD allows a prisoner in a penal institution of one state to initiate a final disposition of another state’s untried indictment on the basis of which a detainer has been lodged against him. See 34-A M.R.S.A. § 9603(1). When a prisoner so initiates a final disposition, the ICD mandates that he be brought to trial “within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court ... written notice of ... his request for final disposition to be made of the indictment.” Id. The same section, however, allows a court to grant “any necessary or reasonable continuance” of the 180-day time limit. In addition, 34-A M.R.S.A. § 9606 provides that the running of the 180-day period “shall be tolled whenever and for as long as the prisoner is unable to stand trial.” For purposes of the statute, a defendant is unable to stand trial during “all those periods of delay occasioned by the defendant.” United States v. Taylor, 861 F.2d 316, 321 (1st Cir.1988) (applying parallel 120-day limitation of ICD). “[A] defendant waives the [180-day] limitation during the time it takes to resolve matters raised by him.” Id.

In the case at bar, defendant, after being notified of the Maine detainer, completed and signed the ICD Form II entitled “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments.” That ICD Form II was delivered to both the York County District Attorney’s office and the York County clerk of the Superior Court on February 9, 1990, thus triggering the 180-day statutory period for the commencement of defendant’s trial. See 34-A M.R.S.A. § 9603(1); State v. Beauchene, 541 A.2d 914, 917 (Me.1988). The jury for defendant’s trial was sworn on October 15, 1990, and thus a total period of 248 days elapsed before the State brought defendant to trial on the Maine indictment. There are, however, at least 68 days that are readily excluded from that 248-day period so as to bring defendant’s trial within the 180-day limitation of the ICD.

After appointment of counsel and arraignment, defendant filed two discovery motions on March 2, and before the court decided those motions, defendant filed on March 9 a motion to suppress statements he made to the officer bringing him back from Arizona. That suppression motion was first scheduled to be heard on May 9, 1990. The 68 days of delay from March 2 to May 9 cannot be charged against the State and are appropriately excluded from the 180-day calculation. Thus, without even examining the circumstances beyond May 9, we find a total of 68 days of delay ascribable to defendant — enough to defeat defendant’s contention that the State failed to bring him to trial within the time required by the ICD.

II.

Admissibility of Defendant’s Statements to Police Officer

Prior to trial, defendant moved to suppress incriminating statements he gave to a police officer while being transported to Maine by plane. He contended that the statements resulted from an interrogation that violated the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the Fifth and Sixth Amendments of the United States Constitution. Although he did not cite the specific authority that he now relies on, he preserved both a Fifth and Sixth Amendment claim. The Superior Court (Cole, J.) denied his motion and his confession was admitted in evidence at trial.

The facts relevant to the suppression issue may be summarized as follows: After the issuance of the grand jury indictment and an arrest warrant, a district attorney in Maine filed a detainer against defendant with the Arizona State Prison. Pursuant to the ICD, defendant was given notice of the untried indictment and responded by filing a written request for disposition of the indictment. By signing that written form, defendant agreed to waive extradition and be transported to Maine for trial, returned to Arizona after disposition, and delivered back to Maine to serve any sentence that might result. 34-A M.R.S.A. § 9603(5) (1988). Certified copies of his written request for disposition were filed with the Superior Court and the appropriate district attorney’s office in Maine. His written request included the statement circled by him: “I request the court to appoint counsel.” Upon receiving defendant’s response, the district attorney arranged for the investigating officer to travel to Arizona, arrest defendant, and return with him to Maine for trial. The officer went to Arizona armed with a prepared typewritten list of 160 questions to pose to defendant. While riding from the prison to the airport, the officer told defendant “that once [they] got on the plane [he] was going to advise him of Miranda and that if [defendant] wished to talk with [him] he could.” Defendant answered that he might “want to talk to a lawyer, but that he would think about it.” Defendant initiated no further conversation, but when given a Miranda warning on the plane, he waived his rights and agreed to talk. The officer posed all 160 questions, interrupting the interrogation only for another Miranda warning after a brief stop in Chicago. At the end of the flight from Arizona to Maine, the State had a confession. Once in Maine, defendant was provided with counsel and arraigned.

The Sixth Amendment guarantees the assistance of counsel at trial and at “earlier, critical stages in the criminal justice process where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.” Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985) (citations and quotations omitted). “Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him_” Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). Moreover, after the initiation of formal charges, the Sixth Amendment guarantees the accused “the right to rely on counsel as a ‘medium’ between him and the State.” Maine v. Moulton, 474 U.S. at 176, 106 S.Ct. at 487. In the present case, there can be no dispute that the right to counsel had attached. Criminal proceedings had been initiated and defendant had responded to the charges by inviting the State of Maine to transport him to Maine for trial.

In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the Supreme Court dealt with two unrelated cases in which defendants arrested for murder made a routine request for counsel at their initial arraignments. In each instance, police officers were present at the arraignment. Before the defendants had the opportunity to consult with counsel, police officers, after advising them of their Miranda rights, questioned them and obtained confessions. The Michigan Supreme Court had held that the confessions should be suppressed on the theory that the police are not free to ignore a defendant’s unequivocal request for counsel. The United States Supreme Court upheld the Michigan court and adopted, for purposes of the Sixth Amendment, the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), with respect to the Fifth Amendment. The Court reasoned that the assertion of the right to counsel is “no less significant, and the need for additional safeguards no less clear,” when the request for counsel is based on the Sixth Amendment. Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986). The Court concluded as follows:

We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.

Id.

Admittedly, there is one factual dissimilarity between the present case and Jackson — defendant’s request for counsel was not delivered during arraignment. Nonetheless, he formally communicated his unequivocal request in writing to the court and the prosecutor through the only means afforded him under the law. 34-A M.R.S.A. § 9603(2). Given the fact that he was a prisoner in another state, he could not have done more to inform the State that he desired counsel to serve as a medium with respect to the charges that had been initiated against him. Rather than honoring his request, the State knowingly exploited the opportunity presented during the flight to Maine by questioning him in the absence of counsel. The State has an affirmative obligation under the Sixth Amendment to respect and preserve the accused’s choice to seek the assistance of counsel. See Maine v. Moulton, 474 U.S. at 171, 106 S.Ct. at 484. “[K]nowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.” Id. at 176, 106 S.Ct. at 487.

Defendant’s Sixth Amendment right to effective representation at trial was significantly impaired because the State ignored his formal and unequivocal request for counsel after proceedings had been initiated by a grand jury indictment, the issuance of a warrant of arrest, a detainer, and a request for prosecution under the ICD. Because defendant’s request for counsel was not honored, the holding in Michigan v. Jackson requires that his subsequent waiver for the police-initiated interrogation be declared invalid.

In the context of the Fifth Amendment and the privilege against self-incrimination, the Supreme Court has ruled that:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, 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 v. Arizona, 451 U.S. at 484, 101 S.Ct. at 1884-85. In the typical situation contemplated in Miranda and Edwards, the defendant is first taken into custody for purposes of interrogation and given his Miranda warning, and then invokes his right to have counsel present during questioning. In the instant case, defendant, an inmate in a state prison, was in custody at all relevant times. While in custody and subject to the inherently compelling pressures of an environment dominated by agents of the state, he invoked his right to counsel before his interrogator had the opportunity to inform him that he had such a right. Given the fact that he was in custody and subject to interrogation, no rational purpose would be served by distinguishing between a request for counsel made before a Miranda warning and one made after such a warning. On somewhat similar facts, the Tenth Circuit Court of Appeals recently suppressed evidence and held that the fact that a defendant in custody “invoked his right to counsel before the police were required to inform him of that right is irrelevant.” United States v. Kelsey, 951 F.2d 1196 (10th Cir.1991). Cf. State v. Lavoie, 562 A.2d 146 (Me.1989) (precustodial assertion of right to remain silent does not preclude interrogation once defendant is taken into custody and given Miranda warnings). In the final analysis, “it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” Edwards, 451 U.S. at 485, 101 S.Ct. at 1885. Thus, in this unique case, the officer’s interrogation of defendant violated the Fifth Amendment as well.

The entry is:

Judgments of conviction vacated. Remanded to the Superior Court for further proceedings consistent with the opinion herein.

GLASSMAN, CLIFFORD and COLLINS, JJ., concurring.