State v. Johnson

STATE of Arkansas v. John Edward JOHNSON

CR 96-359                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 25, 1996


Criminal law -- appellee not deprived of right to counsel -- 
     appellant not entitled to have attorney of his choosing
     present during interrogation. -- Appellee was not deprived of
     his right to counsel, as contemplated by Miranda v Arizona,
     384 U.S. 436 (1966), where he was fully advised of his rights,
     had consulted with an attorney prior to giving a statement,
     the attorney was present during the statement, and there was
     no allegation that counsel was ineffective or acted contrary
     to appellee's interests; the fact that counsel, at the
     interrogation stage of the process, may not have been
     appellee's choice, was of no consequence;  the evils that
     Miranda sought to protect against were not present; appellee's
     statement was not given in a secret or isolated atmosphere nor
     was he kept in ignorance about his rights; his right to
     counsel, as envisioned by the Supreme Court in Miranda, was
     protected; the matter was reversed and remanded.


     Appeal from Pulaski Circuit Court; Marion Humphrey, Judge;
reversed and remanded.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellant.
     Jack R. Kearney, for appellee.

     Bradley D. Jesson, Chief Justice. 
     This is an interlocutory appeal brought by the State, pursuant
to Ark. R. Crim. P. 3(a)(2).  The State contends that the trial
court erred in granting the appellee's motion to suppress his
confession.  We agree and reverse and remand.
     On August 30, 1995, John Edward Johnson was charged with one
count of rape, two counts of aggravated robbery, and two counts of
theft of property.  The charges were brought in connection with the
June 25, 1995 robbery of the Purple Cow restaurant in Little Rock.
The incident was the fourth in a string of robberies which had
occurred at the Purple Cow.  During the course of the June 25 
incident, an employee of the restaurant allegedly was raped.  On
July 7, 1995, Johnson confessed to police that he had committed the
June 25 robbery.  According to Johnson's statement, he went to the
restaurant near closing time.  While wearing a ski mask over his
face and armed with a shotgun, he confronted an employee in the
parking lot.  He forced the employee back into the restaurant,
demanded the night's receipts, and told a female employee to
undress.  He then exited the building.  It is this statement which
Johnson moved to suppress.  He claimed that the statement was
obtained through coercion and that he was denied the ability to
obtain counsel of his own choosing.  The trial judge agreed that
Johnson had been denied his right to choice of counsel, even though
a public defender consulted with Johnson before he gave the
statement and remained with Johnson while the statement was given.
     At a hearing on the motion to suppress, the following evidence
was adduced.  Johnson, a former employee of the Purple Cow, first
became a suspect on or about June 30, 1995.  At the request of
Little Rock Police Detective Todd Armstrong, Johnson came to the
police station on the 30th and was questioned regarding the
incident.  He denied any knowledge of the robbery.  The authorities
took no action based on the interview, and Johnson was free to go. 
Apparently, though, he developed into a suspect shortly thereafter. 
On July 5, 1995, Detective Armstrong, along with Detective Charles
Ray, visited Johnson's home to serve a court order requesting
Johnson to appear on July 7 and provide blood, hair, and urine
samples for chemical testing.  When Johnson did not show up at the
appointed time, a warrant was issued for his arrest for contempt of
court.  He was arrested and brought to the police station on the
afternoon of July 7.  Shortly thereafter, he made the confession
that is the subject of this case.
     Prior to giving his statement, Johnson was advised of his
Miranda rights.  He signed a form containing those rights and also
signed a rights-waiver form.  At some point either during or just
after signing the rights waiver, Johnson told Detective Armstrong
that, before he gave a statement, he would like to talk with an
attorney.  Armstrong testified at the hearing that he responded to
the request as follows:

     I asked him did he have one in mind?  I could give him a
     phone book if he didn't.  He didn't have an attorney in
     mind.  I proceeded to contact the public defender's
     offices so they could send somebody down to represent
     him.

     Armstrong also testified that Johnson did not object to his
calling the public defender, nor did Johnson say that he wanted
another attorney.
     Attorney Tammy Harris from the public defender's office was
summoned by page, and she arrived at the police station shortly
thereafter.  She went over the rights form with Johnson and advised
him not to give a statement.  Johnson indicated he wanted to go
ahead and make a statement.  During the course of their
conversation, Johnson also indicated to Ms. Harris that his family
was going to try and hire a private attorney.  Ms. Harris did not
relay this information to the police.  Shortly thereafter, with Ms.
Harris present, Johnson gave his confession.  It was tape recorded
by the police.  The transcript of the tape reflects that, at the
beginning of the statement, Johnson was again advised of his
Miranda rights.  Ms. Harris then said the following to him:

     Mr. Johnson, I told you of your right number one, you
     have the right to remain silent.  I've advised you to
     exercise that right but you want to go ahead and give a
     statement to Detective Armstrong.  Is that right?

     [Johnson answers]:  Yes.


     The trial judge ruled that, under these circumstances, Johnson
was denied his constitutional right to counsel.  The State appeals
from that ruling.
     In this case we address, for the first time, whether an
accused has a right to have an attorney of his own choosing present
during an in-custody interrogation.  The answer to that question is
important not only in the sense that it involves the precious
safeguards set forth in Miranda v. Arizona, 384 U.S. 436 (1966),
but in the sense that it has far-reaching implications in the
administration of criminal law as applied by police officers,
prosecutors, and public defenders.  Our review of this case is
required for the correct and uniform administration of criminal
law.  Ark. R. App. Crim. 3(c).  We therefore have jurisdiction of
this appeal brought by the State.  See generally State v. Spencer,
319 Ark. 454, 892 S.W.2d 484 (1995) (determining under what
circumstances an officer is required to give Miranda warnings to
the subject of his interrogation).
     The "right to counsel" we speak of in this case is the right
established by the United States Supreme Court in the landmark
Miranda decision.  The Court in Miranda was concerned with the
environment of the interrogation process and designed a system of
procedural safeguards to protect a citizen's Fifth Amendment
privilege against self-incrimination.  Among those safeguards was
the right to the presence of an attorney.  The Court was
particularly bothered by the "compelling atmosphere" of in-custody
interrogation.  Critical to the Court's thinking was the idea that,
in the absence of certain protective devices, interrogations
conducted "incommunicado" or in "privacy" or "secrecy" run the risk
of an accused incriminating himself without full awareness of his
all-important Fifth Amendment rights.
     Against this backdrop, we conclude that John Edward Johnson
was not deprived of his right to counsel, as contemplated by
Miranda.  He consulted with an attorney prior to giving a
statement.  The attorney was present during the statement.  There
is no allegation that counsel was ineffective or acted contrary to
Johnson's interests.  In fact, she advised him not to give a
statement.  The fact that counsel, at the interrogation stage of
the process, may not have been Johnson's choice, is of no
consequence.  See Seattle v. Sandholm, 65 Wash. App. 747, 829 P.2d 1133 (1992).  What is of consequence is that the evils which
Miranda sought to protect against were not present here.  Johnson's
statement was not given in a secret or isolated atmosphere, nor was
he kept in ignorance about his rights.  He had been fully advised
of his Miranda rights, he invoked his right to counsel, he
consulted with an attorney, and he had the attorney present during
questioning.  His right to counsel, as envisioned by the Supreme
Court in Miranda, was protected.  
     Reversed and remanded.
     Newbern, J., not participating.
     Dudley and Roaf, JJ., dissent.  
=================================================================
             Andree Layton Roaf, Justice, dissents.
     I do not agree that the circumstances of this case
sufficiently implicate the correct and uniform administration of
the criminal law so as to invoke the jurisdiction of this court
pursuant to Ark. R. App. P. Crim. 3.  I would dismiss the appeal. 
     Ark. R. App. P. Crim. 3(a) requires the state to certify that
an appeal is not taken for the purposes of delay and that the trial
court's order substantially prejudices the prosecution of the case. 
However, the state may not appeal simply because it believes that
the trial court made an erroneous ruling.  The rule further
requires the attorney general to inspect the record and certify
that the correct and uniform administration of the criminal law
requires review by this court.  Ark. R. App. P. Crim. 3(c). 
     I agree with Johnson's contention that the trial court's
ruling involved a question of fact or at least a mixed question of
law and fact, and is therefore not appropriate for an interlocutory
appeal.  For example, determining whether the statute of
limitations on a particular felony has run does not involve the
correct and uniform administration of criminal law, and is
therefore not appropriate for an interlocutory appeal. See State v.
Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993).  Likewise, pure issues
of statutory application, rather than interpretation, do not
involve the correct and uniform administration of the criminal law. 
See State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995) ("As a
matter of practice under [Ark. R. App. P. Crim. 3], we only take
appeals that are narrow in scope and involve the interpretation of
the law.")
     In State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994), this
court also considered whether it had jurisdiction to consider the
state's interlocutory appeal from the grant of a motion to suppress
a confession.  At issue was a statement made to a fraud
investigator at the Department of Human Services, and whether the
trial court correctly concluded that the investigator was a "law
enforcement officer" as contemplated by Ark. R. Crim. P. 2.3,
requiring that he advise the defendant that she had no obligation
to come to his office to make the statement.  
     In Harris, we construed Ark. R. Crim. P. 36.10 (currently
codified at Ark. R. App. P. Crim. 3), and determined that the trial
court acted within its discretion after making an evidentiary
decision.  The trial court's ruling turned on the facts of the case
to such an extent that the "correct and uniform administration of
the law" was not at issue.  This court further stated that:
In short, an interpretation of the Criminal Rules with
widespread ramifications is simply not at issue in this
case. . . [w]here the trial court acts within its
discretion after making an evidentiary decision based on
the facts on hand or even a mixed question of law and
fact, this court will not accept an appeal under Ark. R.
Crim. P. 36.10 [currently codified at Ark. R. App. P.
Crim. 3].
Id. (emphasis added) (quoting State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993)).  Accordingly, we concluded that we did not have
jurisdiction to hear the interlocutory appeal and dismissed it.
     The present case is essentially indistinguishable from Harris. 
In ordering Johnson's statement to be suppressed, the trial court
determined that the police, as a matter of law, violated Johnson's
constitutional rights in two respects:  the police should have
allowed Johnson to make a telephone call as soon as he requested an
attorney, and should not have been empowered to effectively
"choose" an attorney for Johnson.  However, in so doing, the trial
court necessarily considered certain evidentiary matters: whether
Johnson was under arrest, whether Johnson requested a private
attorney, whether he was allowed to make a phone call, whether the
public defender was representing Johnson at the time of the
statement, whether the police "chose" an attorney for Johnson, and
other circumstances attendant with the taking of Johnson's
statement, both before and after Johnson invoked his right to
consult with an attorney.  The trial court's ruling thus turned on
the facts of the case to a great extent and his decision was, at
the least, based on a mixed question of law and fact.
     As to the merits, the majority frames the issue to be
addressed in this appeal as whether an accused has a right to have
an attorney of his own choosing present during an in-custody
interrogation. In this case, Johnson was a suspect at the time of
his interrogation.  Although he was under arrest for contempt of
court in connection with his failure to show up for the taking of
blood and other samples, he had not yet been charged with the
crime.  Thus, only his Fifth Amendment right against self-
incrimination was implicated in this case, and his Sixth Amendment
right to counsel had not yet attached.  See Davis v. United States,
114 S. Ct. 2350 (1994);  Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995);  McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).
     In Miranda v. Arizona, 384 U.S. 436 (1966), the United States
Supreme Court held that a suspect subject to custodial
interrogation has the right to consult with an attorney and to have
counsel present during questioning, and that police must explain
this right to him before questioning begins.  As stated by the
Court in Michigan v. Tucker, 417 U.S. 433 (1974), the right to
counsel established in Miranda was one of a "series of recommended
'procedural safeguards'. . . [that] were not themselves rights
protected by the Constitution but were instead measures to insure
that the right against compulsory self-incrimination was
protected."
     Here, the public defender did not occupy an attorney-client
relationship with Johnson when she advised him, nor, as a suspect,
was he entitled to appointment of counsel.  Rather, as the United
States Supreme Court stated in Michigan v. Tucker, supra, the Fifth
Amendment right to counsel is a procedural safeguard intended to
insure that the right against compulsory self-incrimination is
protected.  The rule is designed to prevent police from badgering
a defendant into waiving previously asserted Miranda rights.  See
Minnick v. Mississippi, 498 U.S. 146 (1990). I agree with the
majority that under the particular circumstances of this case, the
preponderance of the evidence adduced at the suppression hearing
tends to show that the public defender fulfilled the function of
protecting Johnson against compulsory self-incrimination. However,
she was paged to return to the police station because she had been
there earlier in the day pursuant to the policy of the police
department to have a public defender present when physical samples
are to be taken from a suspect.
     Neither the taking of the samples from Johnson nor this stated
"policy" of the police is at issue in this appeal.  There is no
suggestion that the Little Rock police department, or indeed any
other police department in the state, has a policy of solicitously
procuring counsel for suspects who invoke their Fifth Amendment
rights during custodial interrogation.  Instead, my review of
numerous criminal appeal transcripts would suggest quite a contrary
policy.
     There are surely no "widespread ramifications" for the correct
and uniform administration of justice present in this appeal, and
it should be dismissed.
     I respectfully dissent.
     Dudley, J., joins in this dissent.