75 Wn.2d 649, THE STATE OF WASHINGTON, Respondent, v. PAUL ROBERT TETZLAFF, Appellant
[No. 39585. Department One. Supreme Court April 10, 1969.]
THE STATE OF WASHINGTON, Respondent, v. PAUL ROBERT
TETZLAFF, Appellant.«*»

[1] Criminal Law - Right to Counsel - Prior to Charge - Right to Appointed Counsel. An indigent accused who is subjected to custodial interrogation has the right to have legal counsel appointed, without cost to him, prior to interrogation whether or not he has been charged with the commission of a crime.

[2] Criminal Law - Right to Counsel - Prior to Charge - Waiver -Knowledge of Right. An indigent accused cannot voluntarily and knowingly waive his right to free legal counsel at the time of interrogation, before he is charged, unless he knows of such right. Absent the showing of actual knowledge of such right, the accused cannot be said to have waived it unless he is specifically and adequately advised thereof prior to the alleged waiver.

HALE, J., dissents.

Appeal from a judgment of the Superior Court for King County, No. 45549, Theodore S. Turner, J., entered April 5, 1967. Reversed.

Prosecution for robbery and auto theft. Defendant appeals from a conviction and sentence.

Hempton, Savage & Gossard, by Anthony Savage, Jr., for appellant (appointed counsel for appeal).

Charles O. Carroll and Steve Paul Moen, for respondent.

MCGOVERN, J. -

Defendant appeals from a judgment and sentence entered against him following a jury conviction on two counts each of auto theft and robbery. For appeal purposes he concedes the sufficiency of the admitted evidence to support the verdict. He questions, however, the legal admissibility of certain statements and confessions made by him, introduced by the state, admitted by the court over objections, and considered by the jury.

Following his apprehension as an escapee from the Washington State Reformatory at Monroe, defendant was taken to Seattle, placed in a police lineup and identified by

«*» Reported in 453 P.2d 638.

[1] See Ann. 5 A.L.R.3d 1269; 21 Am. Jur. 2d, Criminal Law §§313, 314.

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several witnesses as the person who committed a number of robberies in King and Snohomish counties. After being so identified he was returned to Monroe.

Later that day, two detectives from the King County Sheriff's office went to Monroe and, in the confines of that institution, prepared to interrogate the defendant. It had been decided that he would be charged with at least one of the robberies about which he was to be questioned.

Before making inquiry of the defendant regarding the crimes, however, the detectives handed to him a written statement reading as follows:

I have the following rights: (1) to remain silent and anything I say could be used against me in court; (2) to talk to any attorney before making any statement and to have him present at the time of making a statement; (3) if I have no resources by which I can obtain an attorney, I have a right to wait and if I am charged the court will provide me with an attorney. After reading the above and with full knowledge of these rights I have decided of my own free will to make and sign the following statement. (Italics ours.) Defendant then signed that advisory statement under date of September 28, 1966.

One of the detectives verbally advised the defendant "that if he was without resources if he was charged, an attorney would be furnished for him by the State." (Italics ours.) And the other detective told him that "if he does not have resources to obtain an attorney that one would be supplied by the court when he is taken before the court." (Italics ours.)

The fact that the defendant was indigent is without contest. He testified that his total resources were in the approximate sum of one dollar and the state did not challenge that testimony.

Under this setting, the detectives then proceeded to question the defendant and obtained from him the statements and confessions which were admitted into evidence against him. Defendant argues that the trial court should have sustained his objections to them at the time of the

Apr. 1969] STATE v. TETZLAFF 651

pretrial hearing held under CrR 101.20W (a), RCW vol. 0.«1»The basis of his argument is that he was not adequately advised of his right to be represented by legal counsel at the time of interrogation. He contends that the advice given him only indicated that he was entitled to free counsel at a later time. He insists that the advice received falls far short of that to which he was constitutionally entitled. We agree.

[1] We hold that, in absence of a legitimate waiver, the right of a known and identified accused to have counsel present at the time of police interrogation is an indispensable part of the protective privilege of the fifth amendment to our federal constitution.

In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), our highest court dealt at length with the subject of custodial interrogation by officers of the law. It was then made clear that an accused indigent has certain basic constitutional rights that must be honored if an incriminating statement made by him is to be used against him. Included within the enumerated rights is that of legal counsel, free to the indigent at the time of interrogation. The court said at 474:

This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. (Italics ours.) And it was further stated at 479 that:

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right

«1» CrR 101.20w(a) provides:

"In every criminal case in which a confession or confessions of the accused are to be offered in evidence, the judge, either at the time of the trial or prior thereto, shall hold a hearing, in the absence of the jury for the purpose of determining whether, in the light of the surrounding circumstances, the confession was voluntary, and, therefore admissible. A court reporter shall record the evidence adduced at this hearing."

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to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. (Footnote omitted. Italics ours.)

An examination of the record here makes it clear that this defendant was merely advised that he was entitled to free legal counsel if charged or when brought before a court. That advice was insufficient. He should have been told that he was entitled to free legal counsel at the time of interrogation. He was in legal custody, had been identified as the person who had committed the robberies and it had already been decided that he would be charged with at least one of the robberies. The fact that he had not yet been formally charged makes no difference. This was not the investigatory stage of an unsolved crime. As the known accused he was entitled to legal representation if he was to be questioned about the crimes. See Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 845. Ct. 1758 (1964).

[2] The state then argues that the defendant waived his right to legal representation. We do not agree. While it is certainly true that an accused may waive his right to counsel, it is equally true that such a waiver is effective only il knowingly, voluntarily and intelligently made. Nowhere in the record does it appear that the defendant knew that he was entitled to have counsel at the time of interrogation. Inasmuch as he was not adequately advised, and because it is not shown that he had actual knowledge of his right to counsel, it cannot therefore be said that he waived the right. One cannot effectively waive such a constitutional right without knowledge of its existence.

The judgment and sentence of the trial court is reversed and the matter remanded for new trial.

Apr. 1969] STATE v. TETZLAFF 653

HILL and ROSELLINI, JJ., and DONWORTH, J. Pro Tem., concur.

HALE, J. (dissenting) - I dissent. In my opinion, this record ought to satisfy even the most enthusiastic partisans of the Miranda rationale, Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Not only should the defendant be charged with knowing his rights under the Fifth and Sixth Amendments from personal experience, but it strikes me that the record shows that he was fully advised of whatever privileges he can be said to have acquired under Miranda. Explicitly, understandably and repeatedly the officers informed the defendant of his rights under the constitution. But additionally, the conclusion is inescapable in my judgment that in a concentrated career of criminality involving many arrests and several convictions the defendant could not help but have already known them.

The record does not show that the defendant professed ignorance or claimed any mental retardation or disability. At a pretrial hearing under CrR 101.20W to test the voluntariness of his confession, defendant testified that he was convicted of forgery in the first degree in March, 1963, and placed on probation by the superior court. Probation, he said, was revoked in December, 1963, because in November, 1963, he had been convicted of grand larceny in the Superior Court for Clark County, sentenced to 15 years and sent to the reformatory. He testified, too, that while serving time in the reformatory, but detailed to the honor camp at Washougal, he escaped in July, 1966, and remained a fugitive until September 22, 1966, at which time he was captured in Edmonds. During his escape, according to his testimony, he committed armed robbery and was convicted of this crime in October, 1966.

To presume that a person of at least average intelligence in the course of accumulating three felony convictions and while the wheels of justice were grinding slowly away would remain ignorant of his constitutional freedom from compulsory self-incrimination, makes the law appear

654 STATE v. TETZLAFF [75 Wn.2d 649

ineluctably foolish and stupid. That during his innumerable consultations with counsel and appearances before the superior court concomitant with the three felony convictions, probation and revocation thereof, the accused was not informed of his rights under the Fifth Amendment, challenges the credulity of the most unsophisticated. The courts, in my Opinion, should maintain a degree of sophistication compatible at least with life in the second half of the twentieth century. Even the accused did not try to establish that he was unaware of his rights under the Fifth Amendment. His ignorance of the very rights he is presumed to know - for all persons are presumed to know the law - is simply presumed by the majority.