Appeal from the Circuit Court of Christian County; the Hon.
Rolland Tipsword, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the circuit court of Christian County granting defendant's pretrial motion to suppress certain statements he made to the police while in custody. We affirm and remand.
Defendant, Randy Crowder, was charged with burglary and theft. During an initial arraignment proceeding on January 25, 1985, defendant requested a public defender and one was appointed. Arraignment was continued. The public defender represented defendant at a February 6, 1985, proceeding, which included arraignment and a preliminary hearing. Counsel also represented defendant at a hearing on his motion for reduction of bond on February 25, 1985. Thereafter and prior to trial defendant moved for the suppression of certain statements that he had made to police officers in the absence of counsel on the evening of February 25, 1985, while he was incarcerated. In his motion defendant claimed that the statements had been elicited in violation of his constitutional rights under the fourth, fifth, sixth, and fourteenth amendments. Defendant maintained that he had not voluntarily, knowingly, and intelligently waived his Miranda rights and that he had not knowingly or voluntarily consented to the absence of counsel. Following a hearing the trial court granted defendant's motion, and the State has appealed from the order granting the motion.
At the hearing defendant called as witnesses Lieutenant David Childers, a policeman for the city of Taylorville, and Deputy Roy Wilbur of the Christian County sheriff's office. Childers testified that he and Deputy Wilbur had spoken with defendant at about 7:30 or 8 p.m. on the date in question in the investigator's office of the jail where defendant was incarcerated. The witness had wanted to talk with defendant about the burglary with which he was charged. Prior to discussing the burglary, Childers told defendant what he wanted to discuss with him and advised him of his Miranda rights. Childers testified that he asked defendant if he understood "each and every one of those rights and he said yes, that he did, he knew them." The witness stated that defendant did not sign a waiver of his rights because Childers did not have a waiver form with him at the time. Childers knew, he said, that the public defender was representing defendant when he spoke with him. After informing defendant of his rights, Childers showed defendant the statement of Gary Lowis, another person involved in the matter. Defendant read the statement and said that it was untrue, that the truth was the opposite of Lowis' statement that he and defendant had been at the scene of the crime together and that defendant had been the one who actually entered the building in question. Defendant, on the other hand, said that Lowis was the one who had entered the building.
Deputy Wilbur testified similarly. He stated that defendant had neither asked the police to speak with him nor indicated that he wanted to talk with anyone about the burglary. Asked on direct whether defendant had done "anything other than indicate that he understood his rights," the witness answered, "I believe he said he understood `em, to the best of my knowledge at that time." The witness testified that defendant had not said that he "waive[d]" his rights. He testified further that no one had attempted to telephone the public defender's office to advise him that questioning of defendant was going to be undertaken. The witness said that he "was not really questioning him, Lieutenant Childers was," because, in part, defendant had an attorney. On cross-examination the witness testified that he had been present during the entire discussion with defendant and that at no time had he heard defendant ask that his attorney be present. Asked whether defendant had indicated "in any fashion whether it be by physical gesture or by verbal exclamation that he was incapable of understanding his Miranda Rights as they were recited to him by Lieutenant Childers," the witness responded, "No sir, he said he understood 'em."
Testifying on his own behalf, defendant stated that he had not asked the police to speak with him and that he had not known the police were coming to speak to him. On cross-examination he said that he has no problem understanding the English language and that at no time during the conversation in question had he asked that his attorney be present.
The State called Lieutenant Childers as a witness, who testified that there was no indication "whatsoever," whether by physical gesture or by verbal expression, that defendant did not understand what he was telling defendant when he gave him the Miranda warnings. The trial court asked the witness, "Did you say anything to Mr. Crowder about asking if he would like to have his attorney present?" The witness answered, "In those particular words, no, I didn't, Judge, it was just when I read when I recited his rights to him, you know, about he did have the right to have an attorney present."
At the conclusion of the hearing on the motion to suppress the trial court remarked:
"Well on the basis of the citation that has been presented [Edwards v. Arizona (1981), 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880] and the law that governs in this kind of case it is of course as you say, the right of the defendant himself to have counsel, it's not the right of a counsel to be present, it's the right of a defendant to have his counsel present.
But nevertheless that is a right that the defendant must specifically waive and the mere fact that he answers questions or the mere fact that he was advised of his Miranda Rights and they proceeded to question him and he may respond to those questions is not a specific waiver of his right to counsel; therefore I am going to grant the motion in this cause and anything, any evidence that proceeds from the questioning on, if it was, whatever day it was, the 25th or the 27th of February, 1985, any evidence that was produced or is covered therefrom is suppressed."
In its written order granting the motion to suppress, the trial court stated, "Any evidence produced from this interrogation on February 27, 1985
or discovered or produced as a result thereof is suppressed for the reason that Def. did not specifically waive the right to have his counsel present at the time of this interrogation initiated by the Taylorville Police."
The issue we address is whether defendant's sixth amendment right to counsel was violated by this interrogation. The State concedes that defendant's right to counsel under the sixth amendment had attached (see United States v. Gouveia (1984), 467 U.S. 180, 187, 81 L.Ed.2d 146, 153, 104 S.Ct. 2292, 2297), and that defendant had a right to have counsel present during any interrogation. The State argues, however, that defendant waived this right when he made statements to the police after being read his Miranda rights.
The United States Supreme Court very recently decided Michigan v. Jackson (1986), 475 U.S. ___, 89 L.Ed.2d 631, 106 S.Ct. 1404, which we find controlling of the case sub judice. In Jackson, police questioned two defendants after they had requested counsel at arraignment proceedings. The Court, after analyzing the defendants' sixth amendment rights to counsel, held 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." (Michigan v. Jackson (1986), 475 U.S. ___, ___, 89 L.Ed.2d 631, ___, 106 S.Ct. 1404, 1411.) The majority expressly applied to sixth amendment cases the reasoning of Edwards v. Arizona (1981), 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880, a decision analyzing waiver of a defendant's fifth amendment right to assistance of counsel during custodial interrogation. In Edwards, the court held that an accused person in custody who has "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 (1981), 451 ...