Dimmick v. State , 473 P.2d 616 ( 1970 )

DIMOND, Justice.

This is an appeal from a conviction of robbery.

At appellant’s trial Lee Herman testified that he and appellant committed the robbery. The first question raised is whether Herman’s testimony was corroborated by other evidence which tended to connect appellant with the commission of the crime.¹

The victim, Richard Moyer, testified that he was robbed by two men. They were apparently masked, because he could not see their faces or hair. Moyer testified that he had known appellant because the latter had worked for him. Moyer said that he could identify appellant as one of the robbers from his voice and his stature, because appellant seemed familiar with Moyer’s house, and by the fact that appellant’s accomplice called appellant “Roy” which was his first name.

Appellant testified in his own defense. He confirmed the fact that he had participated in the robbery, but said that he had done so because Herman told him to and because he wanted to prevent Herman from injuring Moyer.

The statutory requirement of corroboration is based on an assumption that an accomplice might falsely accuse others of a crime in order to purchase for himself immunity from punishment.² This assumption is dispelled and the statutory requirement satisfied when the corroborating evidence tends to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event.³ That is what the corroborating evidence did here. Moyer’s account of the details of the robbery, his identification of appellant as one of the robbers, and appellant’s own admissions regarding his participation in the robbery certainly had the tendency to induce a reasonable belief that Herman’s story was true.

The next question is whether appellant’s trial counsel,⁴ in allowing appellant to testify on his own behalf and make serious judicial admissions, was derelict in his duty to effectively represent his client’s interest. Here a constitutional question is raised — whether appellant was denied the right to have the assistance of counsel for his defense, as guaranteed by the federal and state constitutions.⁵ This constitutional right will be considered to have been denied if incompetence of counsel renders ineffective the legal assistance to which a defendant in a criminal case is entitled.⁶ A defendant is entitled not just to the assistance of counsel, but to the “effective” assistance of counsel.⁷

After the state had rested its case, defense counsel made his opening statement to the jury. He said that appellant would testify because he believed that there were mitigating circumstances involved in his participation in the robbery. Appellant did testify, admitted that he had participated in the robbery, but contended that his involvement was due to Herman’s influence, plus appellant’s desire to protect the robbery victim from bodily harm.

Appellant does not contend that his counsel prevailed upon him, against his will or better judgment, to testify on his own behalf and thus waive his right to remain silent. Assuming, however, that his decision to testify was influenced by counsel’s advice and recommendation, the question is whether this establishes a denial of the effective assistance of counsel.

It does not. The various constitutional guarantees afforded defendants in criminal prosecutions, together with the rule that the government must prove a defendant’s guilt beyond a reasonable doubt, are aimed at protecting the innocent from being convicted and punished for offenses they did not commit. There is no jurisprudential principle, arising from the constitution or other source, which prohibits a guilty man from freely admitting his guilt.

When appellant’s turn came to present his case, he might have chosen to remain silent. But the state’s case against him was a strong one. His decision to testify as he did might have been based on the hope that he could convince the jury he had no real criminal purpose in getting involved in the robbery, or because he hoped that the judge would be influenced to exercise leniency in sentencing in the event he was found guilty. It is not suggested, nor does the record show that appellant did not know of his right to remain silent and did not voluntarily choose to relinquish that right, and that in this respect his counsel failed to represent his best interests.

Assuming that appellant’s decision to testify was made upon the advice of counsel, we cannot say that, this decision in any way showed lack of diligence or effectiveness on counsel’s part. The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense⁸ — a trial where the government is put to its burden of proving guilt beyond a reasonable doubt, in accordance with established principles of law and fundamental notions of fair play and substantial justice. That was the kind of trial appellant had. Trial counsel’s repersentation of appellant was in accordance with high standards of the legal profession. Appellant was afforded the effective assistance of counsel in the constitutional sense.

The last question is whether Herman’s testimony was inadmissible because the police had obtained a statement from him in violation of the standards for custodial police interrogation set out in Miranda v. Arizona.⁹

A police officer testified that he arrested appellant when he was in the company of Herman, that he did not arrest Herman, that he advised both appellant and Herman at the time of “their rights against self-incrimination and the fact that they had an opportunity to have an attorney,” that he then transported both appellant and Herman to the police station, that the robbery victim came to the station and was unable to identify Herman, so that there was no probable cause for arresting him, that Herman stated that he wanted to have an attorney, and that Herman then made a written statement or confession apparently without anything more being said or done as to getting him an attorney. In the words of the police officer “the decision was made to go ahead and interview him [Herman] after he had requested an attorney full-well knowing that then this confession could not be used against him but merely for the value of the confession against Mr. Dim-mick.”

We take it from what the officer said that Herman’s statement was obtained under custodial police interrogation without acceding to his request to have counsel present to represent him, and in the absence of a waiver of his right to counsel. In these circumstances, Herman’s statement could not have been used as evidence against him.¹⁰ Assuming without deciding, that Herman’s testimony at appellant’s trial suffered from the same infirmity as his written statement to the police, and could not have been admitted in evidence against Herman,¹¹ the question here is whether such testimony could be used as evidence against appellant.

The rule in Miranda was fashioned to counteract the coercion of custodial interrogation, where one’s ability to exercise his privilege to remain silent might be undermined. The focus of Miranda was upon the right of an individual not to be compelled to incriminate himself.¹²

The privilege against self-incrimination comes from the constitutional prohibition against compelling any person in a criminal case “to be a witness against himself.”¹³ The language of the constitution is clear. The privilege pertains solely to the person who makes a statement under impermissible conditions where the statement is to be used to convict him, and not some other person. The right is personal in nature — it pertains only to the person from whom a statement is obtained.¹⁴ It cannot reasonably be construed as requiring the exclusion of evidence against one not making any statement in order to protect the rights of the person from whom a statement was obtained in violation of the Miranda rule. The rights of the latter are not involved in a criminal prosecution against the former. The constitutional privilege against self-incrimination is not involved. Herman’s testimony at appellant’s trial was not inadmissible because of such constitutional right.

If Herman’s inculpatory statements were involuntary because of the use of a kind of coercion which would repel civilized and decent men, the use of such statements to convict him would violate due process.¹⁵ Whether the use of coerced statements from Herman to convict appellant would similarly violate due process, may involve considerations different from those involved in the privilege against self-incrimination.¹⁶ Statements which are the product of coercion may be unreliable and untrustworthy, and thus should be excluded as evidence against one not coerced into making them. But more important, coerced statements are condemned because of the “strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.”¹⁷ Those human values may be as much involved and in need of protection when an involuntary statement is used to convict one not coerced into making it as well as when used against the one from whom the statement was obtained.¹⁸

In this case we need not decide whether under due process such a statement may be excluded on objection of one not coerced into making it.¹⁹ There is nothing in the record to suggest that in obtaining the statements from Herman the police indulged in coercion which is offensive to due process.

Our dissenting colleague, Justice Rabin-owitz, suggests that by not applying Miranda to this situation, which would require the exclusion of Herman’s testimony at appellant’s trial, we have invited and encouraged the police to conduct incommunicado interrogations and violate the constitutional rights of persons subject to questioning. We do not deprecate the fifth and sixth amendment rights which form the basis for the rule in Miranda. The rights of one subject to custodial interrogation to be warned of his privilege to remain silent, of the fact that any statement made by him may be used against him, and of his right to the presence of counsel have fundamental value and should be respected by law enforcement officers.

But we may not compel such respect by reading into the constitutional privilege against self-incrimination words that plainly are not there, under the guise of er-ercising our supervisory powers to formulate appropriate standards for the enforcement of criminal law in the courts of this state. We do not condone the custodial interrogation of Herman in violation of the rule of Miranda, nor should “those who flout the rules escape unscathed.”²⁰ If Herman has been deprived of rights secured by the constitution by reason of police activity relating to this case, redress may be sought under the federal Civil Rights Act.²¹ Furthermore, Alaska’s legislature is not without the authority, if it chooses to exercise it, to make certain types of police conduct a crime, or even to extend the exclusionary rule of Miranda and provide that statements obtained in violation of that rule are inadmissible against anyone for any purpose.²²

The ultimate issue on this appeal is whether appellant’s conviction should be affirmed or reversed. On this point the court is evenly divided: Chief Justice BONEY and I would affirm, and Justices RABINOWITZ and CONNOR would reverse and order a new trial. All members of the court are in agreement that the result of this two-to-two decision is af-firmance of the judgment of the superior court.

The judgment is affirmed.

RABINOWITZ, Justice.

I agree with Justice Dimond’s and Chief Justice Boney’s disposition of the corroboration and adequacy of legal representation issues but find that I am in disagreement with their conclusion that Herman’s testimony was admissible.

The record in the case at bar unequivocally shows that while in police custody Herman requested counsel. After a conference between the police and a representative of the district attorney’s office it was decided to question Herman, without honoring his request for counsel, in order to obtain a confession from him for use against appellant Dimmick. When this decision was made and the questioning took place, both the district attorney and the police knew that they lacked probable cause to arrest Herman and that any confession obtained would be inadmissible at trial against him,¹ In light of these circumstances, I think that my colleagues’ belief that Herman’s testimony was admissible reflects an unduly narrow reading of Miranda, is contrary to the spirit of our decision in Roberts v. State,² and indicates an undue reluctance to exercise this court’s supervisory powers to formulate appropriate standards for the enforcement of criminal law in the courts of Alaska.³

Justice Dimond states that it is unnecessary to decide whether appellant has standing to object to Herman’s testimony on the grounds that such testimony was coerced. This conclusion is reached by reasoning that the record is devoid of any evidence that the police employed “coercive tactics” in the due process sense, in obtaining statements from Herman, or that such statements were involuntarily made. I think it highly significant that the Supreme Court of the United States said in Miranda that absent requisite warnings to combat the inherently compelling pressures of police interrogation, all custodial questioning is “inherently coercive.”

Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.⁴

Since the adequate protective devices called for by Miranda were intentionally dodged by the law enforcement authorities in the course of carrying out their custodial interrogation of Herman, I do not believe that this court may properly adopt a voluntary-involuntary pre-Miranda test for determination of the admissibility of Herman’s testimony. The difficulty of proving physical or psychological brutality inherent in the custodial police interrogation situation was a highly significant factor in moving the Supreme Court in Miranda to abandon the voluntary-involuntary test in such circumstances. The teaching of Miranda is that all custodial police interrogation is inherently coercive and that no statements obtained in the absence of adequate protective devices can be characterized as voluntary.

One purpose of the Miranda decision was deterrence of unlawful police activity. Condoning the tactics of the police and district attorney’s office in the case at bar in effect tells the police that they may ignore requests for counsel and disregard claims of the privilege against self-incrimination by persons subjected to custodial police interrogation.⁵

Rather than emphasizing the personal nature of the privilege against self-incrimination, de-emphasizing the right to counsel, and adopting a voluntary-involuntary test as determinative of the admissibility of Herman’s testimony, I believe we should focus upon and evaluate the police conduct in question. This approach comports with our duty, under this court’s supervisory powers, to formulate appropriate standards for the enforcement of the criminal law. Adoption of an objective test of propriety of police conduct and supplementary exclusionary rule would vindicate the privilege against self incrimination and the right to counsel guaranteed by both the United States and Alaska Constitutions, would effectuate Miranda’s goal of deterrence of unlawful or improper police conduct, and would harmonize with the spirit of Roberts.⁶ Utilization of this approach would also facilitate a proper balance between society’s interest in the enforcement of its criminal laws and the rights of any individual in police custody to decent treatment. Citizens placed in the circumstances of custodial interrogation by police are not without the law’s protection.⁷ In my view, any person who is taken into police custody for purposes of questioning, even at a general investigatory stage, is entitled to be accorded the entire panoply of Miranda rights.⁸

The alternative is encouragement of frequent incommunicado custodial police interrogation, with concomitant violations of the constitutional rights of the persons subjected to questioning. I think that this alternative is gravely dangerous for it violates the rights of a person being subjected to custodial interrogation and represents an open invitation to adopt such procedures as a standard method for the solution of particular crimes or for conducting generalized crime hunts. More particularly in order to obtain convictions of others the police are informed by this approach that they can routinely and intentionally violate persons’ constitutional rights by interrogating them without permitting them to refuse to answer questions, terminate interrogation or consult attorneys.⁹

Given the intentional and advised refusal of the police to grant Herman’s in-custody request for assistance of counsel, I would hold under this court’s supervisory powers that his testimony should have been excluded and would therefore reverse appellant’s conviction and grant a new trial.

1 . AS 12.45.020 provides:

Conviction on testimony of accomplice and corroboration. A conviction shall not be had on the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission.

2 . Oxenberg v. State, 362 P.2d 893 (Alaska 1961).

3 . Id. at 897.

4 . Appellant’s counsel on this appeal was not his trial counsel.

5 . The sixth amendment to the United States Constitution provides in part:

In all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defense.

The Alaska constitution, art. 1, § 11, provides in part:

In all criminal prosecutions, the accused shall have the right to * * * have the assistance of counsel for his defense.

6 . White v. State, 457 P.2d 650, 652-653 (Alaska 1969).

7 . Anderson v. State, 438 P.2d 228, 229-230 (Alaska 1968); Head v. State, 445 P.2d 229, 233 (Alaska 1968).

8 . White v. State, 457 I’.2d 650, 653 (Alaska 1969).

9 . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

10 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 U.Ed.2d 694 (1966) ; Thes-sen v. State, 454 P.2d 341, 343-344 (Alaska 1969).

11 . See People v. Morse, 70 Cal.2d 711, 76 Cal.Rptr. 391, 452 P.2d 607, 629 (1969).

12 . Nicholi v. State, 451 P.2d 351, 355-356 (Alaska 1969).

13 . The fifth amendment to the United States Constitution provides in part:

Xo person * * * shall be compelled in any criminal case to be a witness against himself * * *.

Alaska constitution, art. 1, § 9 provides in part:

No person shall be compelled in any criminal proceeding to be a witness against himself.

14 . People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772, 775-776 (1967) ; People v. Denham, 41 H1.2d 1, 241 N.E.2d 415, 417-418 (1968).

15 . Jackson v. Denno, 378 U.S. 368, 385-386, 84 S.Ct. 1774, 12 L.Ed.2d 908, 921 (1964) ; Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 5 L.Ed.2d 760, 766-767 (1961).

16 . Malinski v. New York, 324 U.S. 401, 430-431, 65 S.Ct. 781, 89 L.Ed. 1029, 1046, n. 17 (1945) (Justice Rutledge dissenting).

17 . Jackson v. Denno, 378 U.S. 368, 386, 84 S.Ct. 1774, 1785, 12 L.Ed.2d 908, 921 (1964).

18 . See Malinski v. New York (Justice Rutledge dissenting), supra n. 16, 324 U.S. at 431, 65 S.Ct. 781, 89 L.Ed. at 1046.

19 . See Turner v. Pennsylvania, 338 U.S. 62, 65-66, 69 S.Ct. 1352, 93 D.Ed. 1810, 1813-1814 (1949).

20 . Alderman v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176, 187 (1969).

21 . 42 U.S.C. § 1983 (R.S. § 1979) provides :

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

See also 18 U.S.C. § 242 which provides:

AVhoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.

22 . Cf. Alderman v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 22 L.Ed.2d 176, 187-188 (1969).

1 . The record reveals that Officer Porter testified as follows:

The same request was made by Mr. Dimmick and one was not appointed at his — for him at that point, but he was not questioned any further. It was felt by myself and a representative of the District Attorney’s office agreed that at this point there was no probable cause and probably no hope for any additional evidence turning up that would warrant or substantiate the arrest of Mr. Herman without a confession. So it was — the decision was made to go ahead and interview him after he had requested an attorney full well knowing that then this could not be used against him but merely for the value of the confession against Mr. Dimmick.

2 . 458 P.2d 340, 345 (Alaska 1969).

3 . Watson v. State, 413 P.2d 22, 26 (Alaska 1966); Bear v. State, 439 P.2d 432, 439-440 (Alaska 1968) (dissenting opinion) (Rabinowitz, J.).

4 . Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694, 714 (1966).

5 . See also Justice Peter’s concurring and dissenting opinion in People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772, 777-780 (1967).

6 . In Roberts, after indictment was returned and counsel appointed, the police obtained handwriting exemplars from the accused in the absence of his counsel and despite counsel’s refusal to consent to the giving of the exemplars. In reversing, we said in part:

The district attorney should comply with the ethical standards generally applicable to attorneys. While we do not now hold that the United States and Alaska Constitutions necessarily protect those accused of crime against breaches of professional ethics, this court will not eagerly adopt controversial constitutional interpretations which would encourage unethical behavior.

Roberts v. State, 458 P.2d 340, 345 (Alaska 1969).

7 .Compare Chief Justice Warren’s dissent in Bradford v. Michigan, 394 U.S. 1022, 89 S.Ct. 1638, 23 L.Ed.2d 48, 49 (1969) (citations omitted) :

It is now a commonplace that coerced confessions are inadmissible at criminal trials because they are untrustworthy and the methods used to obtain them offend the principle that our system of criminal justice is accusa-torial not inquisitorial. * * * Nor do I think it relevant that the coercion in this case was exerted against the chief state witness rather than the accused. As was said by Mr. Justice Rutledge, dissenting in Malinski v. New York * * *:

“Due process does not permit one to be convicted upon his own coerced confession. It should not allow him to be convicted upon a confession wrung from another by coercion. A conviction supported only by such a confession could be but a variation of trial by ordeal.”

8 . Enker & Elsen, Counsel for the Suspect: Massiali v. United States and Escobedo v. Illinois, 49 Minn.L.Rev. 47, 60-61 (1964); Mishkin, The Supreme Court, 1984 Term, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 101 (1965).

9 . In my view neither 18 U.S.C. § 242 nor 42 U.S.C. § 1983 provide a workable alternative. The criminal statute, 18 U.S.C. § 242, does not provide any remedy against police conduct not motivated by the victim’s race, color or alien status. The civil statute, 42 U.S.C. § 1983, provides no effective remedy where the victim suffered only nominal damages.