People v. Pierson , 1983 Colo. LEXIS 627 ( 1983 )

ERICKSON, Chief Justice.

We granted certiorari to review People v. Pierson, 633 P.2d 485 (Colo.App.1981), which reversed the district court’s denial of a motion to suppress statements made by the defendant at two different times and overturned Pierson’s conviction for first-degree murder. We reverse the Court of Appeals in part and affirm in part, and return this case to the Court of Appeals with directions to remand to the district court for a further hearing and for a new trial.

I.

In the early morning hours of March 14, 1977, the defendant, Richard Austin Pier-son, telephoned the Boulder police department and reported that Charles Schubert had committed suicide in his apartment. After investigating the death, the police determined that Schubert had been murdered. Evidence in the apartment and statements from Pierson’s girlfriend led the police to suspect Pierson of murder. Pier-son was taken to the Boulder Criminal Justice Center and advised of his Miranda rights. He chose not to waive his rights but said that he would talk to the detectives after he consulted his attorney. Pierson was permitted to call his probation officer and his parents. He told his parents to get him a lawyer.

Thereafter, a barium antimony test was made on Pierson’s hands to determine if he had recently discharged a firearm. Before the test was performed, Pierson told Detective Sinclair that he had fired a rifle the day before at 7:00 p.m. at the Colorado University rifle range and asked whether it would affect the test. Detective Sinclair responded that the test would be affected if the rifle had been shot within six hours of the test. After the test was completed, Pierson repeated his concern that the results of the test would be inaccurate. Detective Sinclair questioned Pierson about the number of shots he had fired and Pier-son stated that when he borrowed the rifle it had five rounds in the clip and that he and a friend, Clay Lance, had fired fifty rounds. In response to questions about where Lance lived, Pierson gave the detective directions to Lance’s apartment. Later that day, Detective Sinclair learned that Lance had been in Colorado General Hospital for the previous four or five days. Lance’s testimony was used at trial to impeach Pierson’s explanation of his actions on the night of Schubert’s death.

Following his arrest, Pierson made numerous requests to talk to the investigating officers. In an attempt to prevent Pierson from talking, defense counsel sought a protective order to prevent the police from questioning Pierson unless counsel were present. The district court denied the request for a protective order. However, at the hearing on the motion, the district attorney advised the court that the police would notify defense counsel prior to any subsequent interview of the defendant. The police, nevertheless, talked to Pierson on numerous occasions without notifying defense counsel.

On June 23, Pierson asked to talk to a detective about the burglary of his apartment. Detectives Epp and Sinclair interviewed Pierson at the jail on June 28, and again advised him of his Miranda rights. Pierson said he understood the warning, and agreed to talk with the police officers. After a short discussion of the burglary, Detective Epp asked the defendant if there was anything else he wanted to talk about. Pierson responded, “Yeah, there’s a lot of things I want to tell you.... ” He then proceeded to give the officers an account of how he had fabricated a statement he had given in the murder investigation. After the detectives repeatedly asked Pierson about the murder and questioned his veracity, he confessed that he had shot and killed Schubert.

At the hearing on the defendant’s motion to suppress, Pierson testified that he had made between ten and fourteen statements, and moved to have all the statements suppressed on the grounds that they were obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. The district court suppressed all statements made between March 14 and June 28, but denied the motion to suppress the March 14 and June 28 statements. The court found that the March 14 statements were volunteered and not in response to questioning, and that the June 28 statements were obtained from the defendant after he had requested an interview and had waived his right to counsel. The court concluded that the defendant had knowingly and intelligently made the statements to the police. Subsequently, Pierson was convicted of first-degree murder and sentenced to life imprisonment.

The Court of Appeals concluded that the admission of the March 14 statement violated the defendant’s Fifth Amendment Miranda rights and the admission of the June 28 statements deprived the defendant of his Sixth Amendment right to effective assistance of counsel and then reversed the defendant’s conviction and remanded for a new trial. The Court of Appeals declared that once an accused requests counsel, any statements made without counsel present are per se inadmissible unless the defense attorney has been notified of the pending interview and given a reasonable opportunity to be present, or unless the defendant has expressly waived his right to counsel.

II.

The Miranda safeguards provide an accused protection against compelled self-incrimination which is the result of custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980). In Rhode Island v. Innis, 446 U.S. at 300-301, 100 S.Ct. at 1689-1690, the Supreme Court defined interrogation as either express questioning or its functional equivalent. The functional equivalent of questioning consists of “any words or actions on the part of the police [other than those normally attendant to arrest and custody] that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. at 1689.

In our view, the March 14 statements are comprised of two distinct parts: remarks made at the defendant’s initiative and direct responses to questions asked by Detective Sinclair. We believe that the defendant’s initial remarks about target practicing are not the result of custodial interrogation. Pierson’s initial statements were not made in response to express questioning by Detective Sinclair. The defendant initiated the conversation about target practicing and Detective Sinclair’s response was not custodial interrogation. What occurred during the performance of the barium antimony test is not the equivalent of express questioning. See People v. Sharpless, 635 P.2d 896 (Colo.App.1981).

The defendant’s answers to Detective Sinclair’s subsequent questioning were, however, the product of custodial interrogation and were obtained in violation of the defendant’s Miranda rights. We have repeatedly held that once an accused requests counsel all questioning must cease. People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980); People v. Richards, 194 Colo. 83, 568 P.2d 1173 (1977); People v. Brake, 191 Colo. 390, 553 P.2d 763 (1976). A defendant’s exercise of his privilege against self-incrimination must be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Here Pierson made an unequivocal request to talk to an attorney. Nevertheless, when Pierson expressed his concern about target practicing, Detective Sinclair began to probe and elicited incriminating information with questions directed to the number of rounds of ammunition Pierson had fired at the Colorado University firing range with Clay Lance. Pierson was also questioned about Lance’s address. The record establishes that Detective Sinclair sought to obtain incriminating responses from the defendant. Detective Sinclair should have known that his questioning was reasonably likely to elicit an incriminating response. Rhode Island v. Innis, supra. Accordingly, we affirm the Court of Appeals’ conclusion that the defendant’s responses to Detective Sinclair’s questioning should have been excluded at trial. However, we conclude that Pierson’s voluntary statements which were made pri- or to Detective Sinclair’s questioning should not have been excluded.

III.

The Court of Appeals also held that, once an accused has retained counsel, any statement obtained without counsel being present may not be admitted into evidence without an express waiver of counsel. Accordingly, the Court of Appeals held that the June 28 statement should have been suppressed.

We disagree and do not adopt the express waiver rule established by the Court of Appeals. An express waiver is not necessary to support a finding that an accused has relinquished the right to counsel guaranteed by Miranda. By creating an inflexible rule eliminating the possibility of an implicit waiver, the Court of Appeals has gone far beyond the requirements of Miranda. See North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).¹ We believe the better rule to be that the validity of a waiver must be determined, from the totality of the circumstances in a particular case.

The requirements for admitting statements made by an accused after invoking the right to counsel are set forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Oregon v. Bradshaw, - U.S. -, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).² The Edwards-Bradshaw test requires first that the accused initiate further communication with the police. An accused initiates a conversation when his comments “evince a willingness and a desire for a generalized discussion about the investigation,” and are not “merely a necessary inquiry arising out of the incidents of the custodial relationship.” Oregon v. Bradshaw, — U.S. at -, 103 S.Ct. at 2835, 77 L.Ed.2d at 413. Second, the prosecution must establish that the statements initiated by the accused were preceded by a valid waiver of the right to counsel and the right to remain silent. A waiver is valid if it is a knowing and intelligent relinquishment of a known right under the totality of the circumstances which in turn is determined by “the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1937); Edwards v. Arizona, supra; Oregon v. Bradshaw, supra. The courts will indulge every reasonable presumption against a waiver. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

After determining that a defendant has validly waived his constitutional rights, the next step is to determine whether the defendant’s confession was voluntary. People v. Fish, 660 P.2d 505 (Colo.1983); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); People v. Fordyee, 200 Colo. 153, 612 P.2d 1131 (1980); People v. Smith, 179 Colo. 413, 500 P.2d 1177 (1972). The burden of proof is on the prosecution to establish by a preponderance of the evidence, considering the totality of the circumstances, that the inculpatory statement was made voluntarily. People v. Fish, supra; People v. Thorpe, 641 P.2d 935 (Colo.1982). The trial court’s findings of fact on the voluntariness of a confession will be upheld on appeal if supported by adequate evidence in the record. People v. Thorpe, 641 P.2d at 941; People v. Parks, 195 Colo. 344, 579 P.2d 76 (1978). In this case, the controversy centers on the validity of the defendant’s waiver of his right to counsel and of his right against self-incrimination, therefore, it is unnecessary for us to determine whether Pierson’s confession was voluntary.

There is no dispute that the defendant initiated the June 28 meeting. His statement, “Yeah, there’s a lot of things I want to tell you ...,” followed by an explanation of the shooting, indicates a “willingness and a desire for a generalized discussion about the investigation.” Oregon v. Bradshaw, supra. The more difficult question is whether the prosecution has shouldered the burden of proving that Pierson knowingly and intelligently relinquished his right to counsel and his right against self-incrimination.³ The recorded transcript of the June 28 meeting establishes that Pier-son was fully and adequately advised of his Miranda rights and that he understood them before he made any statements. However, waiver requires not merely comprehension but relinquishment of the defendant’s rights. Brewer v. Williams, 430 U.S. at 404, 97 S.Ct. at 1242. The trial court made no specific findings that the defendant waived his right to counsel or his right against self-incrimination when the interview shifted from the burglary to the murder. There is also nothing in the record to indicate that the defendant knowingly and intelligently relinquished his rights when he made his confession. “A valid waiver will not be presumed ... simply from the fact that a confession was in fact eventually obtained.” Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); People v. Harris, 191 Colo. 234, 552 P.2d 10 (1976).

The circumstances surrounding the June 28 statement raise serious questions about whether the defendant knowingly and intelligently relinquished his rights.⁴ Pierson, according to the record, made between ten and fourteen statements to the police after he had talked with his attorney. In fact, Pierson was so prone to talk with the police that his attorney attempted to obtain a protective order to silence him. Defense counsel told the district court that “[m]y client has displayed a proclivity for wanting to talk to the authorities in this case. He sends up notes and says I want to talk to you about my case.... It appears at times that I can’t stop him from doing this.” Doctor Plazak, the court-appointed psychiatrist, concluded that the defendant’s repeated requests to talk to the police “were not the product of a knowing and intelligent waiver of rights but rather a function of his desire to manipulate those around him to gain attention, and to achieve status within the jail community.” The trial judge refused to grant the protective order but did state that because of Dr. Plazak’s remarks, he would probably grant a motion to suppress when considering future statements on an individual basis.

The defendant has a long history of mental health problems which required treatment at mental hospitals throughout the state. A month before the shooting the defendant voluntarily sought help at the Boulder Psychiatric Institute and was confined for his psychiatric problems. Dr. Pla-zak diagnosed Pierson as suffering from “borderline schizophrenia” and advised the court at the competency hearing that he was only “marginally competent” to proceed. Competency to stand trial requires that a defendant understand the nature and course of the proceeding against him and have the ability to participate and assist in his defense or cooperate with his defense counsel. Section 16-8-102(3), C.R.S.1973 (now in 1978 Repl.Vol. 8). See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1974); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). In this case, there was serious question as to whether the defendant was competent to be tried.

The prosecution must prove by clear and convincing evidence that the defendant both understood and agreed to waive his right to counsel. At the June 28 meeting, both interrogating officers knew that the defendant was emotionally unstable and that he had a history of mental illness. Despite the officers’ knowledge of the defendant’s psychological infirmities, they purposefully applied pressure on Pier-son during the interrogation to obtain a confession. Miranda warnings and the requirement of a valid waiver are meant to protect a defendant’s right against self-incrimination from the “compulsion inherent in custodial” interrogation and the police’s purpose to “subjugate the individual to the will of [the] examiner.” Miranda v. Arizona, 384 U.S. 436, 457-458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694 (1966). The prosecution may not use either exculpatory or in-culpatory statements stemming from custodial interrogation if the procedural safeguards which protect the privilege against self-incrimination are not followed. Miranda v. Arizona, supra. The prosecution must sustain its heavy burden of showing a valid waiver, and any ambiguity in determining whether a defendant has waived his rights must be interpreted against the prosecution.

In addition, the record shows that the detectives knew that Pierson had retained counsel, yet they questioned him in direct contravention of the district attorney’s assurance that the police would notify defense counsel prior to any further interviews. The Sixth Amendment prohibits law enforcement officers from “deliberately eliciting” incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). The government violates an accused’s Sixth Amendment guarantee to the assistance of counsel by intentionally creating a situation likely to elicit an incriminating statement from the defendant without the protection of counsel. United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).

We are unable to determine from the record or from the trial court’s findings of fact whether the defendant intelligently and knowingly waived his right to counsel and his right against self-incrimination. The defendant’s waiver of his rights when the discussion of the burglary was initiated by the defendant is insufficient to establish waiver of his rights after the conversation shifted from the burglary to the murder. Therefore, a hearing is required to determine whether, under the totality of the circumstances, Pierson knowingly and intelligently waived his right to counsel and his privilege against self-incrimination.

Accordingly, we affirm the Court of Appeals in part, reverse in part, and return this case to the Court of Appeals with directions to remand to the district court for a new trial and for further hearings consistent with the directions contained in this opinion.

ROVIRA, J., concurs in part and dissents in part.

1 . The express waiver requirement has been rejected by every United States Court of Appeals that has considered the issue. United States v. Monti, 557 F.2d 899 (1st Cir.1977); United States v. Speaks, 453 F.2d 966 (1st Cir.1972); United States v. Boston, 508 F.2d 1171 (2d Cir.1974); United States v. Cobbs, 481 F.2d 196 (3d Cir.1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Stuckey, 441 F.2d 1104 (3d Cir.1971); Blackmon v. Biackledge, 541 F.2d 1070 (4th Cir. 1976); United States v. Hayes, 385 F.2d 375 (4th Cir. 1967); United States v. Brown, 569 F.2d 236 (5th Cir.1978); United States v. Cavailino, 498 F.2d 1200 (5th Cir.1974); United States v. Montos, 421 F.2d 215 (5th Cir.1970); United States v. Springer, 460 F.2d 1344 (7th Cir.1972), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); United States v. Ganter, 436 F.2d 364 (7th Cir.1970); United States v. Marchildon, 519 F.2d 337 (8th Cir.1975); Hughes v. Swenson, 452 F.2d 866 (8th Cir.1971); United States v. Moreno-Lopez, 466 F.2d 1205 (9th Cir.1972); United States v. Hilliker, 436 F.2d 101 (9th Cir.1970); Bond v. United States, 397 F.2d 162 (10th Cir.1968) (but see Sullins v. United States, 389 F.2d 985 (10th Cir.1968); United States v. Cooper, 163 U.S. App.D.C. 55, 499 F.2d 1060 (1974).

2 . Neither Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), nor Oregon v. Bradshaw, - U.S. -, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), requires an express waiver of the right, to counsel once an attorney has been requested.

3 . The defendant incorrectly argues that the standard of proof for a valid waiver is beyond a reasonable doubt. The burden of proof is on the prosecution to prove by clear and convincing evidence that the defendant waived his constitutional rights. People v. Fish, 660 P.2d 505 (Colo.1981); People v. Schultz, 200 Colo. 47, 611 P.2d 977 (1980); see also People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980).

4 . Under Miranda, a suspect has the “undisputed right” to remain silent and to be free of interrogation “until he ha[s) consulted with a lawyer.” Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). The Fifth Amendment right identified in Miranda is the right to have counsel present at the custodial interrogation. If there is no interrogation, there can be no infringement of an accused individual’s rights and there would be no occasion to determine if there was a valid waiver. Edwards v. Arizona, 451 U.S. at 485-486, 101 S.Ct. at 1885-1886. However, if an interrogation has occurred, the prosecution must establish a valid waiver of both the right to counsel and the right to remain silent. Id. at 486 n. 9, 101 S.Ct. at 1885-1886 n. 9.