[No. 78514-7. En Banc.]
Argued March 20, 2007. Decided September 6, 2007.
[1] Criminal Law — Right to Counsel — Commencement — Constitutional Right — Sixth Amendment. The Sixth Amendment right to counsel attaches when the State initiates adversarial proceedings against a defendant. [2] Criminal Law — Confessions — Right to Counsel — Commencement — Effect. Once a criminal defendant's Sixth Amendment right to counsel has attached upon the initiation of adversarial proceedings, the defendant may not be interrogated by a state agent without counsel present, nor may incriminating statements made by the defendant in the course of such an interrogation be used against the defendant, if the right to counsel has not been waived by the defendant. [3] Criminal Law — Right to Counsel — Commencement — Affirmative Request — Necessity. A criminal defendant's Sixth Amendment right to counsel attaches upon the initiation of adversarial proceedings against the defendant and the defendant need not make an affirmative request for assistance of counsel. [4] Criminal Law — Right to Counsel — Duration — Throughout Proceedings — After Conviction — Critical Stages. The Sixth Amendment right to counsel is specific to a particular offense charged and protects the accused throughout the prosecution and after conviction of that charge. It applies to every critical stage of the proceedings or, as the United States Supreme Court has said, whenever necessary to assure a meaningful defense. [5] Criminal Law — Confessions — Right to Counsel — Violation — Test. The State obtains an incriminating statement from a criminal defendant in violation of the defendant's Sixth Amendment right to counsel if (1) the statement was given to a government agent without the knowledge or presence of counsel, (2) the statement was made in a "critical stage of the proceedings," and (3) the government agent "deliberately elicited" the statement. [6] Criminal Law — Confessions — Right to Counsel — Deliberate Elicitation of Incriminating Statement — Test. A criminal defendant's incriminating statement is deliberately elicited by a government agent for purposes of the Sixth Amendment right to counsel if, before the statement was made, the agent made some effort to stimulate conversation about the crime charged. The Sixth Amendment provides a criminal defendant with a right to counsel even when there is no interrogation and no Fifth Amendment applicability. [7] Criminal Law — Right to Counsel — Commencement — Critical Stage — Presentence Interview. A presentence interview of a convicted defendant conducted by a Department of Corrections employee constitutes a critical stage of the proceedings for purposes of the Sixth Amendment right to counsel if statements made by the defendant in the interview are used against the defendant for an adversarial purpose, such as by admission of the statements as incriminating evidence in a subsequent retrial of the defendant on the same charges. [8] Criminal Law — Confessions — Right to Counsel — Deliberate Elicitation of Incriminating Statement — Invitation To Describe Offense. A government agent deliberately elicits an incriminating statement from a criminal defendant by inviting the defendant to describe the defendant's version of the offense charged. [9] Criminal Law — Confessions — Right to Counsel — Violation — Effect. A criminal conviction may be reversed on the grounds that the State violated the defendant's Sixth Amendment right to counsel by deliberately eliciting an incriminating statement from the defendant in a critical stage of the proceedings without counsel's knowledge or presence. Nature of Action: Prosecution for first degree murder and, in the alternative, second degree murder. Both charges included a deadly weapon allegation. The defendant's first trial ended in a mistrial. His second trial ended in a conviction, which the Supreme Court reversed at 145 Wn.2d 456 (2002), holding that the trial court committed prejudicial error by improperly admitting certain evidence. At the defendant's third trial, a Department of Corrections employee testified to incriminating statements made by the defendant during a presentence interview that was conducted after his second trial but before his conviction was reversed on appeal. The purpose of the interview was to gather information to present to the sentencing court. The department employee did not contact the defendant's counsel before conducting the interview. In the course of the interview, the department employee invited the defendant to tell about his offense. The defendant made the incriminating statements in response. Superior Court: The Superior Court for King County, No. 97-1-01122-8, Paris K. Kallas, J., on December 19, 2003, entered a judgment on a verdict finding the defendant guilty of first degree murder while armed with a deadly weapon. Court of Appeals: The court affirmed the judgment at 131 Wn. App. 227 (2006), holding that admission of the department employee's testimony relating the incriminating statements made by the defendant in the presentence interview did not violate the defendant's Sixth Amendment right to counsel. Supreme Court: Holding that the defendant's Sixth Amendment right to counsel was violated where the department employee deliberately elicited the defendant's incriminating statements in a critical stage of the proceedings without the knowledge or presence of counsel, the court reverses the decision of the Court of Appeals and the judgment and remands the case to the trial court for further proceedings. Susan F. Wilk- (of Washington Appellate Project), for petitioner. Daniel T. Satterberg-, Interim Prosecuting Attorney, and Deborah A. Dwyer-, Deputy, for respondent. EN BANC [As amended by order of the Supreme Court September 13 and November 2, 2007.] ¶1 FAIRHURST, J. — Darrell Everybodytalksabout seeks review of a published decision by Division One of the Court of Appeals affirming his conviction for first degree and second degree felony murder. He claims his rights under the Fifth ¶2 We reverse the Court of Appeals and remand for retrial without Everybodytalksabout's incriminating statements. Because we hold Everybodytalksabout's Sixth Amendment right to assistance of counsel was violated, we do not decide Everybodytalksabout's Fifth Amendment claim. I. FACTUAL AND PROCEDURAL HISTORY ¶3 The parties do not dispute the essential facts of this case. In February 1997, the State charged Everybodytalksabout and Phillip Lopez jointly with the crime of first degree murder for stabbing Rigel Jones to death during the course of a robbery. State v. Everybodytalksabout, 131 Wn. App. 227, 231, 126 P.3d 87 (2006). The court declared a mistrial as to Everybodytalksabout because the State discovered that some of the testimony presented at trial was perjured. Id. at 231. ¶4 In July 1997, the State proceeded against only Everybodytalksabout for first degree and second degree murder while armed with a deadly weapon, and he was convicted. State v. Everybodytalksabout, 145 Wn.2d 456, 460, 39 P.3d 294 (2002). On July 29, 1997, the trial court ordered a presentence investigation report pursuant to CrR 7.1(a). Defense counsel was copied on the order. Diane Navicky, a CCO with DOC, prepared the report. ¶5 As part of her routine procedure for preparation of the presentence investigation report, Navicky interviewed Everybodytalksabout in the King County Jail on August 21, 1997. She did not contact Everybodytalksabout's attorney before conducting the interview, nor did she know if Everybodytalksabout had advance notification of the date of the interview. Report of Proceedings (RP) (Oct. 16, 2003) ¶6 After asking some preliminary questions, Navicky invited Everybodytalksabout to talk about his offense. In her presentence investigation report, Navicky wrote that Everybodytalksabout "admit[ted] that he assisted in the robbery but would not comment any further." Ex. 1, at 4. He also "stated that he was not the one who murdered Rigel Jones." Id. Once the interview started to focus on Everybodytalksabout's offense, however, he abruptly ended it, saying, " 'I don't want to talk about this any more.' " RP (Oct. 16, 2003) at 50; Clerk's Papers at 854. Navicky did not attempt to detain Everybodytalksabout or continue the interview. Everybodytalksabout was sentenced to a 328 months total confinement and community placement for two years. Everybodytalksabout, 145 Wn.2d at 460. ¶7 Everybodytalksabout filed a notice of appeal from his second trial on September 29, 1997, and in November 2000, Division One affirmed in an unpublished opinion. Id. Everybodytalksabout petitioned this court for review, and in February 2002, we reversed, finding that the trial court erred in admitting evidence demonstrating Everybodytalksabout's leadership qualities. Id. at 481. ¶8 The State proceeded against Everybodytalksabout a third time in December 2003. At the CrR 3.5 hearing, Navicky testified about Everybodytalksabout's statements to her at the presentence interview. Everybodytalksabout moved to exclude the statements, but the trial judge ruled them admissible. In its oral findings, the court concluded that Everybodytalksabout's Sixth Amendment rights were not violated because Navicky had no reason to believe Everybodytalksabout would make any incriminating statements, and Navicky did not take any action that was deliberately designed to elicit an incriminating statement. RP (Nov. 6, 2003) at 20-24. ¶9 Navicky testified at Everybodytalksabout's third trial. Everybodytalksabout was convicted of first degree and second degree murder, and he appealed. ¶10 We granted Everybodytalksabout's petition for review. State v. Everybodytalksabout, 158 Wn.2d 1019, 149 P.3d 377 (2006). II. ISSUE ¶11 Did Navicky violate Everybodytalksabout's Sixth Amendment right to assistance of counsel? III. ANALYSIS ¶15 " '[T]he Sixth Amendment provides a right to counsel . . . even when there is no interrogation and no Fifth Amendment applicability.' " Id. (alterations in original) (quoting Michigan v. Jackson, 475 U.S. 625, 632 n.5, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986)). "[T]he Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached." Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985). The Sixth Amendment is also not violated if the government agent "made 'no effort to stimulate conversations about the crime charged.' " Kuhlmann, 477 U.S. at 442 (quoting United States v. Henry, 447 U.S. 264, 271 n.9, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980)). To show that his Sixth Amendment rights were violated, Everybodytalksabout must show that Navicky made "some effort to 'stimulate conversations about the crime charged.' " Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004) (quoting Henry, 447 U.S. at 271 n.9). ¶16 The State concedes that Navicky is a government agent. Suppl. Br. of Resp't at 10. Thus, we need resolve only two questions in determining whether Everybodytalksabout's Sixth Amendment rights were violated. First, whether the presentence interview constituted a "critical stage of the proceedings." Second, whether Navicky "deliberately elicited" Everybodytalksabout's statements. A. Critical stage of the proceedings ¶18 As the State notes, some federal courts have concluded that a presentence interview does not constitute a critical stage of the proceeding, but only if the interview is conducted by a probation officer for sentencing purposes and the interview is nonadversarial in nature. For example, the Jackson court noted the "district judge's use of a defendant's statement to a probation officer . . . is markedly unlike the prosecutor's adversarial use of a defendant's pretrial statement to a psychiatrist to carry the state's burden of proof before a jury." 886 F.2d at 844. The court commented that because the defendant's statement was used only by the sentencing judge, the presentence interview was not a critical stage of the proceeding. Id. Similarly, information obtained by probation officers in the presentence interview in Brown was used only for sentencing purposes, not by prosecutors in adversarial proceedings. Brown, 811 F.2d at 941; see also Baumann v. United States, 692 F.2d 565, 578 (9th Cir. 1982). In contrast, the presentence interview here was ultimately adversarial because although Everybodytalksabout's statements aided the court in determining his sentence after his second trial, it also provided crucial evidence used at his third trial. ¶19 Moreover, at the time of the presentence interview, Everybodytalksabout was still " 'faced with a phase of the adversary system' and was 'not in the presence of [a] perso[n] acting solely in his interest.' " Estelle v. Smith, 451 U.S. 454, 467, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) (alterations in original) (quoting Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). Estelle involved a criminal defendant denied advice of counsel as to whether he should submit to a pretrial psychiatric examination about his future dangerousness. Id. at 458 n.5, 459. The psychiatrist who conducted the examination ultimately testified about the defendant's statements during the penalty phase of his trial. Id. at 458-60. The United States Supreme Court held that a defendant should be provided with assistance of counsel during the penalty phase of his trial because " '[i]t is central to [the Sixth Amendment] principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution.' " 451 U.S. at 470 (emphasis added) (second alteration in original) (quoting Wade, 388 U.S. at 226-27). The court noted that defendant's counsel were not "notified in advance that the psychiatric examination would encompass the issue of their client's future dangerousness, and [the defendant] was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed." ¶20 The Court of Appeals also overlooked a Ninth Circuit Court of Appeals case that, while not binding, is instructive and squarely addresses Everybodytalksabout's unique circumstances. Cahill v. Rushen, 678 F.2d 791 (9th Cir. 1982). Cahill involved a man arrested on suspicion of murder who promised a sheriff's captain that he would confess if convicted. Id. at 792. After Cahill's conviction, and without offering Cahill the opportunity to consult with counsel, giving him Miranda warnings, or informing his attorney of the meeting, the sheriff's captain obtained the promised confession. Id. at 793. When Cahill's conviction was overturned on appeal, the State used Cahill's confession in his retrial. Id. Cahill claimed the confession was inadmissible in the second trial because the sheriff's captain had violated his Sixth Amendment right to assistance of counsel. Id. The court agreed, holding the fact that a defendant's conviction is not yet final does not create "a temporal hiatus in the right to counsel." Id. at 795. Emphasizing the narrowness of its ruling, it concluded "any incriminating statements deliberately elicited by the State without at least affording defendant the opportunity to consult with counsel, must be excluded at any subsequent trial on the charges for which defendant [wa]s then under indictment." Id. The court further noted, "[e]ven a brief consultation with his attorney would have corrected Cahill's erroneous impression that a confession at that point could have no adverse consequences." Id. at 794. As in Cahill, the fact that Everybodytalksabout had been convicted at the time of the presentence interview did not alleviate his need for counsel. Even a brief consultation with his attorney could have alerted him to the consequences of discussing questions about the crime with which he was charged. ¶21 We conclude that because the statements Everybodytalksabout made in his presentence interview were used for the adversarial purpose of convicting him in a subsequent trial, the presentence interview was a critical stage of the proceeding. B. Deliberately elicited ¶23 The State argues that in order for Navicky's actions to be deliberate, they must have been "premeditated" and "intentional," and Navicky's actions were neither because she acted in a neutral role rather than on behalf of "law enforcement or the prosecutor's office." Suppl. Br. of Resp't at 23. The State also cites the trial court's conclusion that Navicky did not use secretive or evasive tactics in conducting the interview. Id. at 24-25. ¶24 The appellate court concluded that Navicky did not deliberately elicit Everybodytalksabout's incriminating statements because she merely asked for Everybodytalksabout's version of the offense "within a series of impartial questions," and "created a situation where Everybodytalksabout could proclaim his innocence once more." Everybodytalksabout, 131 Wn. App. at 239. ¶25 The Court of Appeals applied the incorrect analysis. Regardless of whether all Navicky's other questions in the interview were impartial, the pertinent question asked about Everybodytalksabout's version of the offense for which he had been charged and convicted. Under Sixth Amendment analysis, the government agent need only " 'stimulate conversations about the crime charged' " to deliberately elicit incriminating statements. Randolph, 380 F.3d at 1144 (quoting Henry, 447 U.S. at 271 n.9). Navicky's questions were more than just an effort to stimulate conversation, and they were clearly about the crime charged. She explicitly asked Everybodytalksabout to discuss the very crime for which he was charged and convicted, and the State subsequently used Everybodytalksabout's own words to retry him for the same crime. ¶26 We conclude that because Navicky stimulated conversations about the crime for which Everybodytalksabout was charged and convicted, Navicky deliberately elicited Everybodytalksabout's incriminating statements. IV. CONCLUSION ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, OWENS, and J.M. JOHNSON, JJ., concur.