State v. Lang

State v. Lang  (95-477); 167 Vt. 572; 702 A.2d 135 

[Filed 23-Sep-1997]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 95-477

                              APRIL TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Chittenden Circuit
Travis J. Lang                  }
                                }     DOCKET NO. 1053-3-92Cncr


       In the above-entitled cause, the Clerk will enter:

       Defendant Travis Lang appeals his conviction for first-degree murder,
  claiming that his taped, pre-information statements to an informant were
  admitted at trial in violation of the Sixth Amendment, the Vermont public
  defender statutes, and Disciplinary Rule 7-104(A)(1) of the Code of
  Professional Responsibility.  Without these statements, defendant argues,
  the evidence was insufficient to convict him.  We hold that the trial court
  properly admitted the taped statements, and affirm.

       Although the murder occurred in 1988, information connecting defendant
  to the incident surfaced much later.  In April 1991, while defendant was in
  custody for want of bail regarding an unrelated armed robbery case, the
  Chittenden County State's Attorney wrote to defendant's then lawyer, asking
  if defendant would like to cooperate with the prosecution concerning "a
  most serious crime [that] took place in the county some time ago." 
  Defendant's counsel wrote back, indicated a willingness to cooperate, but
  the state's attorney abandoned the inquiry without responding.

       In February 1992, an informant offered to provide the State
  information about the murder in return for leniency concerning gambling
  charges.  The police asked the informant to discuss the murder with
  defendant and obtained a warrant to provide the informant with an
  electronic surveillance device so they could record and listen to
  conversations.  During the recorded conversation with the informant,
  defendant made a number of incriminating statements pointing to his
  involvement in the homicide.  Based on this evidence, the state's attorney
  filed an information charging defendant with first-degree murder.

       Defendant contends that his recorded statements were taken in
  violation of the right to counsel provided by the Sixth Amendment to the
  United States Constitution.  His argument is that he was represented by
  counsel, and any interrogation should have occurred only in the presence of
  counsel.  Although the Sixth Amendment prohibits the State from
  interrogating a criminal defendant outside the presence of counsel, it
  applies only when "judicial proceedings have been initiated."  Brewer v.
  Williams, 430 U.S. 387, 398 (1977).  Thus, the right to counsel attaches
  only at or after the initiation of adversarial proceedings against the
  defendant -- whether by way of formal charge, preliminary hearing,
  indictment, information, or arraignment.  United States v. Gouveia, 467 U.S. 180, 187-88 (1984).  Further, the right is offense-specific.  It
  cannot be invoked for a specific offense unless formal adversarial
  proceedings concerning that offense have been initiated.  McNeil v.
  Wisconsin, 501 U.S. 171, 175-76 (1991).  The conversation with the
  informant occurred before any adversarial

 

  proceedings had commenced and thus before the Sixth Amendment provided a
  right to counsel. There was no violation of the Sixth Amendment.

       Similarly, there was no violation of the public defender statute. 
  Under the statute, the right to counsel is triggered when a "needy person .
  . . is being detained by a law enforcement officer without charge or
  judicial process, or . . . is charged with having committed or is being
  detained under a conviction of a serious crime."  13 V.S.A. § 5231.  The
  statute provides no greater right to counsel to a needy person than is
  available to any other individual. See State v. Parizo, 163 Vt. 103, 107,
  655 A.2d 716, 718 (1994).

       Finally, defendant contends that the taped conversations violated
  Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility,
  which directs that a lawyer shall not: "[c]ommunicate or cause another to
  communicate on the subject of the representation with a party he knows to
  be represented by a lawyer in that matter unless he has the prior consent
  of the lawyer representing such other party or is authorized by law to do
  so."  DR 7-104(A)(1). Much of the briefing and argument on this point has
  centered on whether defendant was a "party" for purposes of the
  disciplinary rule before the commencement of the criminal case. Defendant
  argues that we took a broad view of the term "party" in DR 7-104(A)(1) in
  In re Illuzzi, 159 Vt. 155, 159-60, 616 A.2d 233, 236 (1992), and making
  the filing of a criminal case a prerequisite to "party" status is
  inconsistent with that decision.  The State counters that Illuzzi does not
  apply to a criminal proceeding and that the better-reasoned decisions
  require initiation of a prosecution.  See United States v. Ryans, 903 F.2d 731, 739-40 (10th Cir. 1990) (distinguishing between "party" and "person");
  United States v. Infelise, 773 F. Supp. 93, 95 n.3 (N.D. Ill. 1991)
  (no-contact rule does not apply to investigation prior to initiation of
  adversarial proceedings).  We need not resolve this issue because, even if
  defendant were a "party" at the time of the recorded conversation with the
  informant, there was no violation of the ethical rule.

       We have three reasons for our view.  First, defendant was not
  represented by counsel in this matter at the time of the undercover
  operations.  As we have already discussed, defendant's Sixth Amendment
  right to counsel had not yet attached at the time of defendant's
  conversation with the informant, nor had defendant been charged with any
  crime connected to this homicide.  In any case, we would hesitate to extend
  this rule to so-called career criminals who retain permanent counsel in
  order to immunize themselves from infiltration by informants. See generally
  United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988); P. Karlan,
  Discrete and Relational Criminal Representation: The Changing Vision of the
  Right to Counsel, 105 Harv. L. Rev. 670, 701 (1992).  Second, the informant
  was not acting as the "alter ego" of the prosecutor; he was directed by the
  police, not the state's attorney, on how to elicit information from
  defendant.  See United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993)
  (co-defendant who cooperated with IRS agent was not alter ego of
  prosecutor); United States v. Gray, 825 F. Supp. 63, 64 (D.Vt. 1993)
  (investigative agents who acted independently of prosecutor were not
  prosecutor's alter ego); .  Third, the rule has an exception for
  communications authorized by law, and we believe it applies to these
  undercover operations.  Compare United States v. Devillio, 983 F.2d 1185,
  1191-92 (2d Cir. 1993) (use of undercover informant was authorized by law
  where, although defendant had retained counsel, his Sixth Amendment rights
  had not yet attached) with Hammad, 858 F.2d  at 840 (use of falsified
  subpoena against defendant who had retained counsel constituted
  misconduct).

 


       Affirmed.



                              BY THE COURT:


                              _______________________________________
                              Ernest W. Gibson III, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Frederic W. Allen, Chief Justice (Ret.)
                              Specially Assigned