Opinion · Supreme Court of the United States
Texas v. Cobb
Tex. v. Cobb, 532 U.S. 162 (2001)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 2001-04-17
- Topic
- general
How later courts describe this case
- holding that the Block-burger test is properly applied to determine whether two acts constitute the “same offense” under the Sixth Amendment
- holding that a defendant’s statements regarding uncharged offenses, without his attorney present, were admissible notwithstanding his right to counsel on other charged offenses
- concluding that the defendant’s confessions to the murders of Ms. Owing and her daughter were admissible in the murder trial
- holding that Sixth Amendment right to counsel encompasses only offenses that "would be considered same offense under the Blockburger test”
- holding that the Sixth Amendment right to counsel on charged offenses does not prevent law enforcement from interrogating a defendant regarding other uncharged offenses
- concluding that an appellate court’s view regarding an issue cannot be implied from a prior case in which the court did not address the issue in its opinion
- holding that the Sixth Amendment right to counsel attaches only to charged offenses, and there is no exception for uncharged crimes that are “factually related” to a charged offense
- holding that bank robbery continues throughout the period of hot pursuit
Citator
Texas v. Cobb has been questioned or limited by later authorities: relies on overruled authority: 475 U.S. 625 (overruled by Montejo v. Louisiana). Read them before relying on it. 479 later decisions cite it.
- Authority status
- caution
- Cited by
- 479 opinions
TEXAS v. COBB,532 U.S. 162(2001)
121 S.Ct. 1335
TEXASv. COBB
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 99-1702.
Argued January 16, 2001
Decided April 2, 2001
(a) InMcNeilv.Wisconsin,501 U.S. 171,176, this Court held that a defendant's statements regarding offenses for which he has not been charged are admissible notwithstanding the attachment of hisSixth Amendmentright to counsel on other charged offenses. Although some lower courts have read intoMcNeil's offense-specific definition an exception for crimes that are "factually related" to a charged offense, and have interpretedBrewerv.Williams,430 U.S. 387, andMainev.Moulton,474 U.S. 159, to support this view, this Court declines to do so.Brewerdid not address the question at issue here. And to the extentMoultonspoke to the matter at all, it expressly referred to the offense-specific nature of theSixth Amendmentright to counsel. In predicting that the offense-specific rule will prove disastrous to suspects' constitutional rights and will permit the police almost total license to conduct unwanted and uncounseled interrogations, respondent fails to appreciate two critical considerations. First, there can be no doubt that a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation. SeeMiranda, supra, at 479. Here, police scrupulouslyPage 163followedMiranda's dictates when questioning respondent. Second, the Constitution does not negate society's interest in the police's ability to talk to witnesses and suspects, even those who have been charged with other offenses. SeeMcNeil, supra, at 181. Pp. 167-172.
(b) Although theSixth Amendmentright to counsel clearly attaches only to charged offenses, this Court has recognized in other contexts that the definition of an "offense" is not necessarily limited to the four corners of a charging document. The test to determine whether there are two different offenses or only one is whether each provision requires proof of a fact which the other does not.Blockburgerv.United States,284 U.S. 299,304. TheBlockburgertest has been applied to delineate the scope of theFifth Amendment'sDouble Jeopardy Clause, which prevents multiple or successive prosecutions for the "same offense." See,e.g., Brownv.Ohio,432 U.S. 161,164-166. There is no constitutional difference between "offense" in the double jeopardy and right-to-counsel contexts. Accordingly, when theSixth Amendmentright to counsel attaches, it encompasses offenses that, even if not formally charged, would be considered the same offense under theBlockburgertest. Pp. 172-174.
(c) At the time respondent confessed to the murders, he had been indicted for burglary but had not been charged in the murders. As defined by Texas law, these crimes are not the same offense underBlockburger. Thus, theSixth Amendmentright to counsel did not bar police from interrogating respondent regarding the murders, and his confession was therefore admissible. P. 174.
Reversed.Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which Scalia andThomas, JJ., joined, post, p. ___. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 177.
In December 1993, Lindsey Owings reported to the Walker County, Texas, Sheriff's Office that the home hePage 165shared with his wife, Margaret, and their 16-month-old daughter, Kori Rae, had been burglarized. He also informed police that his wife and daughter were missing. Respondent Raymond Levi Cobb lived across the street from the Owings. Acting on an anonymous tip that respondent was involved in the burglary, Walker County investigators questioned him about the events. He denied involvement. In July 1994, while under arrest for an unrelated offense, respondent was again questioned about the incident. Respondent then gave a written statement confessing to the burglary, but he denied knowledge relating to the disappearances. Respondent was subsequently indicted for the burglary, and Hal Ridley was appointed in August 1994 to represent respondent on that charge.
Shortly after Ridley's appointment, investigators asked and received his permission to question respondent about the disappearances. Respondent continued to deny involvement. Investigators repeated this process in September 1995, again with Ridley's permission and again with the same result.
In November 1995, respondent, free on bond in the burglary case, was living with his father in Odessa, Texas. At that time, respondent's father contacted the Walker County Sheriff's Office to report that respondent had confessed to him that he killed Margaret Owings in the course of the burglary. Walker County investigators directed respondent's father to the Odessa police station, where he gave a statement. Odessa police then faxed the statement to Walker County, where investigators secured a warrant for respondent's arrest and faxed it back to Odessa. Shortly thereafter, Odessa police took respondent into custody and administered warnings pursuant toMirandav.Arizona,384 U.S. 436(1966). Respondent waived these rights.
After a short time, respondent confessed to murdering both Margaret and Kori Rae. Respondent explained that when Margaret confronted him as he was attempting to removePage 166the Owings' stereo, he stabbed her in the stomach with a knife he was carrying. Respondent told police that he dragged her body to a wooded area a few hundred yards from the house. Respondent then stated:
"`I went back to her house and I saw the baby laying on its bed. I took the baby out there and it was sleeping the whole time. I laid the baby down on the ground four or five feet away from its mother. I went back to my house and got a flat edge shovel. That's all I could find. Then I went back over to where they were and I started digging a hole between them. After I got the hole dug, the baby was awake. It started going toward its mom and it fell in the hole. I put the lady in the hole and I covered them up. I remember stabbing a different knife I had in the ground where they were. I was crying right then.'"
App. to Pet. for Cert. A-9 to A-10.
Respondent later led police to the location where he had buried the victims' bodies.
Respondent was convicted of capital murder for murdering more than one person in the course of a single criminal transaction. See Tex. Penal Code Ann. §19.03(a)(7)(A) (1994). He was sentenced to death. On appeal to the Court of Criminal Appeals of Texas, respondent argued,interalia, that his confession should have been suppressed because it was obtained in violation of hisSixth Amendmentright to counsel. Relying onMichiganv.Jackson,475 U.S. 625(1986), respondent contended that his right to counsel had attached when Ridley was appointed in the burglary case and that Odessa police were therefore required to secure Ridley's permission before proceeding with the interrogation.
The Court of Criminal Appeals reversed respondent's conviction by a divided vote and remanded for a new trial. The court held that "once the right to counsel attaches toPage 167the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged."2000 WL 275644, *3 (2000) (citations omitted). Finding the capital murder charge to be "factually interwoven with the burglary," the court concluded that respondent'sSixth Amendmentright to counsel had attached on the capital murder charge even though respondent had not yet been charged with that offense.Id., at *4. The court further found that respondent had asserted that right by accepting Ridley's appointment in the burglary case. Seeibid. Accordingly, it deemed the confession inadmissible and found that its introduction had not been harmless error. Seeid., at *4-*5. Three judges dissented, findingMichiganv.Jacksonto be distinguishable and concluding that respondent had made a valid unilateral waiver of his right to counsel before confessing. See 2000 WL, at *5-*13 (opinion of McCormick, P.J.).
The State sought review in this Court, and we granted certiorari to consider first whether theSixth Amendmentright to counsel extends to crimes that are "factually related" to those that have actually been charged, and second whether respondent made a valid unilateral waiver of that right in this case.530 U.S. 1260(2000). Because we answer the first question in the negative, we do not reach the second.
TheSixth Amendmentprovides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." InMcNeilv.Wisconsin,501 U.S. 171(1991), we explained when this right arises:
"TheSixth Amendmentright [to counsel] . . . is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment,Page 168information, or arraignment."Id., at 175 (citations and internal quotation marks omitted).
Accordingly, we held that a defendant's statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of hisSixth Amendmentright to counsel on other charged offenses. Seeid., at 176.
Some state courts and Federal Courts of Appeals, however, have read intoMcNeil's offense-specific definition an exception for crimes that are "factually related" to a charged offense.1Several of these courts have interpretedBrewerv.Williams,430 U.S. 387(1977), andMainev.Moulton,474 U.S. 159(1985) — both of which were decided well beforeMcNeil— to support this view, which respondent now invites us to approve. We decline to do so.
InBrewer, a suspect in the abduction and murder of a 10-year-old girl had fled from the scene of the crime in Des Moines, Iowa, some 160 miles east to Davenport, Iowa, where he surrendered to police. An arrest warrant was issued in Des Moines on a charge of abduction, and the suspect was arraigned on that warrant before a Davenport judge. Des Moines police traveled to Davenport, took the man into custody, and began the drive back to Des Moines. Along the way, one of the officers persuaded the suspect to lead police to the victim's body. The suspect ultimately was convicted of the girl's murder. This Court upheld the federal habeas court's conclusion that police had violated the suspect'sSixth Amendmentright to counsel. We held that the officer's comments to the suspect constitutedPage 169interrogation and that the suspect had not validly waived his right to counsel by responding to the officer. See430 U.S., at 405-406.
Respondent suggests thatBrewerimplicitly held that the right to counsel attached to the factually related murder when the suspect was arraigned on the abduction charge. See Brief for Respondent 4. The Court's opinion, however, simply did not address the significance of the fact that the suspect had been arraigned only on the abduction charge, nor did the parties in any way argue this question. Constitutional rights are not defined by inferences from opinions which did not address the question at issue. Cf.Hagansv.Lavine,415 U.S. 528,535, n. 5 (1974) ("[W]hen questions of jurisdiction have been passed on in prior decisionssub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us").Moultonis similarly unhelpful to respondent. That case involved two individuals indicted for a series of thefts, one of whom had secretly agreed to cooperate with the police investigation of his codefendant, Moulton. At the suggestion of police, the informant recorded several telephone calls and one face-to-face conversation he had with Moulton during which the two discussed their criminal exploits and possible alibis. In the course of those conversations, Moulton made various incriminating statements regarding both the thefts for which he had been charged and additional crimes. In a superseding indictment, Moulton was charged with the original crimes as well as burglary, arson, and three additional thefts. At trial, the State introduced portions of the recorded face-to-face conversation, and Moulton ultimately was convicted of three of the originally charged thefts plus one count of burglary. Moulton appealed his convictions to the Supreme Judicial Court of Maine, arguing that introduction of the recorded conversation violatedPage 170hisSixth Amendmentright to counsel. That court agreed, holding:
"`Those statements may be admissible in the investigation or prosecution of charges for which, at the time the recordings were made, adversary proceedings had not yet commenced. But as to the charges for which Moulton's right to counsel had already attached, his incriminating statements should have been ruled inadmissible at trial, given the circumstances in which they were acquired.'"474 U.S., at 168(quotingStatev.Moulton,481 A.2d 155,161(1984)).
We affirmed.
Respondent contends that, in affirming reversal of both the theft and burglary charges, theMoultonCourt must have concluded that Moulton'sSixth Amendmentright to counsel attached to the burglary charge. See Brief for Respondent 13-14; see also Brief for the National Association of Criminal Defense Lawyers et al. asAmici Curiae22-23. But theMoultonCourt did not address the question now before us, and to the extentMoultonspoke to the matter at all, it expressly referred to the offense-specific nature of theSixth Amendmentright to counsel:
"The police have an interest in the thorough investigation of crimes for whichformal chargeshave already been filed. They also have an interest in investigating new or additional crimes. Investigations of either type of crime may require surveillance of individuals already under indictment. Moreover, law enforcement officials investigating an individual suspected of committing one crime andformallychargedwith having committed another crime obviously seek to discover evidence useful at a trial of either crime. In seeking evidence pertaining topendingcharges, however, the Government's investigative powers are limited by theSixth Amendmentrights of the accused. . . . On the other hand, to excludePage 171evidence pertaining to charges as to which theSixth Amendmentright to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities."474 U.S., at 179-180(emphasis added; footnote omitted).
See alsoid., at 168 ("[T]he purpose of their meeting was to discuss thepending charges");id., at 177 ("[T]he police knew . . . that Moulton and [the informant] were meeting for the express purpose of discussing thepending charges. . ." (emphasis added)). Thus, respondent's reliance onMoultonis misplaced and, in light of the language employed there and subsequently inMcNeil, puzzling.
Respondent predicts that the offense-specific rule will prove "disastrous" to suspects' constitutional rights and will "permit law enforcement officers almost complete and total license to conduct unwanted and uncounseled interrogations." Brief for Respondent 8-9. Besides offering no evidence that such a parade of horribles has occurred in those jurisdictions that have not enlarged uponMcNeil, he fails to appreciate the significance of two critical considerations. First, there can be no doubt that a suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation. SeeMirandav.Arizona,384 U.S., at 479;Dickersonv.United States,530 U.S. 428,435(2000) (quotingMiranda). In the present case, police scrupulously followedMiranda's dictates when questioning respondent.2Second, it is critical to recognize that the ConstitutionPage 172does not negate society's interest in the ability of police to talk to witnesses and suspects, even those who have been charged with other offenses.
"Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser. Admissions of guilt resulting from validMirandawaivers `are more than merely "desirable"; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law.'"McNeil,501 U.S., at 181(quotingMoranv.Burbine,475 U.S. 412,426(1986)).
See alsoMoulton, supra, at 180 ("[T]o exclude evidence pertaining to charges as to which theSixth Amendmentright to counsel had not attached at that time the evidence was obtained, simply because other charges were pending at the time, would unnecessarily frustrate the public's interest in the investigation of criminal activities").
Although it is clear that theSixth Amendmentright to counsel attaches only to charged offenses, we have recognizedPage 173in other contexts that the definition of an "offense" is not necessarily limited to the four corners of a charging instrument. InBlockburgerv.United States,284 U.S. 299(1932), we explained that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."Id., at 304. We have since applied theBlockburgertest to delineate the scope of theFifth Amendment'sDouble Jeopardy Clause, which prevents multiple or successive prosecutions for the "same offence." See,e.g.,Brownv.Ohio,432 U.S. 161,164-166(1977). We see no constitutional difference between the meaning of the term "offense" in the contexts of double jeopardy and of the right to counsel. Accordingly, we hold that when theSixth Amendmentright to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under theBlockburgertest.3
While simultaneously conceding that its own test "lacks the precision for which police officers may hope,"post, at 10, the dissent suggests that adoptingBlockburger's definition of "offense" will prove difficult to administer. But it is the dissent's vague iterations of the "`closely related to'" or "`inextricably intertwined with'" test,post, at 10, that would defy simple application. The dissent seems to presuppose that officers will possess complete knowledge of the circumstances surrounding an incident, such that the officers will be able to tailor their investigation to avoid addressing factually related offenses. Such an assumption, however, ignores the reality that police often are not yet aware of thePage 174exact sequence and scope of events they are investigating — indeed, that is why police must investigate in the first place. Deterred by the possibility of violating theSixth Amendment, police likely would refrain from questioning certain defendants altogether.
It remains only to apply these principles to the facts at hand. At the time he confessed to Odessa police, respondent had been indicted for burglary of the Owings residence, but he had not been charged in the murders of Margaret and Kori Rae. As defined by Texas law, burglary and capital murder are not the same offense underBlockburger. Compare Tex. Penal Code Ann. §30.02(a) (1994) (requiring entry into or continued concealment in a habitation or building) with § 19.03(a)(7)(A) (requiring murder of more than one person during a single criminal transaction). Accordingly, theSixth Amendmentright to counsel did not bar police from interrogating respondent regarding the murders, and respondent's confession was therefore admissible.
The judgment of the Court of Criminal Appeals of Texas is reversed.
It is so ordered.
As the facts of the instant case well illustrate, it is difficult to understand the utility of aSixth Amendmentrule that operates to invalidate a confession given by the freePage 175choice of suspects who have received proper advice of theirMirandarights but waived them nonetheless. See Miranda v. Arizona,384 U.S. 436(1966). TheMirandarule, and the related preventative rule ofEdwardsv.Arizona,451 U.S. 477(1981), serve to protect a suspect's voluntary choice not to speak outside his lawyer's presence. The parallel rule announced inJackson, however, supersedes the suspect's voluntary choice to speak with investigators. AfterJacksonhad been decided, the Court made the following observation with respect toEdwards:
"Preserving the integrity of an accused's choice to communicate with police only through counsel is the essence ofEdwardsand its progeny — [not barring an accused from making aninitialelection as to whether] he will face the State's officers during questioning with the aid of counsel, or go it alone. If an accused `knowingly and intelligently' pursues the latter course, we see no reason why the uncounseled statements he then makes must be excluded at his trial."Pattersonv.Illinois,487 U.S. 285,291(1988).
There is little justification for not applying the same course of reasoning with equal force to the court-made preventative rule announced inJackson;forJackson, after all, was a wholesale importation of theEdwardsrule into theSixth Amendment.
In the instant case, Cobb at no time indicated to law enforcement authorities that he elected to remain silent about the double murder. By all indications, he made the voluntary choice to give his own account. Indeed, even now Cobb does not assert that he had no wish to speak at the time he confessed. While theEdwardsrule operates to preserve the free choice of a suspect to remain silent, ifJacksonwere to apply it would override that choice.
There is further reason to doubt the wisdom of theJacksonholding. NeitherMirandanorEdwardsenforces thePage 176Fifth Amendmentright unless the suspect makes a clear and unambiguous assertion of the right to the presence of counsel during custodial interrogation.Davisv.United States,512 U.S. 452,459(1994). Where a requiredMirandawarning has been given, a suspect's later confession, made outside counsel's presence, is suppressed to protect theFifth Amendmentright of silence only if a reasonable officer should have been certain that the suspect expressed the unequivocal election of the right.
TheSixth Amendmentright to counsel attaches quite without reference to the suspect's choice to speak with investigators after aMirandawarning. It is the commencement of a formal prosecution, indicated by the initiation of adversary judicial proceedings, that marks the beginning of theSixth Amendmentright. Seeante, at 4 (quotingMcNeilv.Wisconsin,501 U.S. 171,175(1991)). These events may be quite independent of the suspect's election to remain silent, the interest which theEdwardsrule serves to protect with respect toMirandaand theFifth Amendment, and it thus makes little sense for a protective rule to attach absent such an election by the suspect. We ought to question the wisdom of a judge-made preventative rule to protect a suspect's desire not to speak when it cannot be shown that he had that intent.
Even ifJacksonis to remain good law, its protections should apply only where a suspect has made a clear and unambiguous assertion of the right not to speak outside the presence of counsel, the same clear election required underEdwards. Cobb made no such assertion here, yetJustice Breyer's dissent rests upon the assumption that theJacksonrule should operate to exclude the confession no matter. There would be little justification for this extension of a rule that, even in a more limited application, rests on a doubtful rationale.Justice BreyerdefendsJacksonby arguing that, once a suspect has accepted counsel at the commencement ofPage 177adversarial proceedings, he should not be forced to confront the police during interrogation without the assistance of counsel. Seepost, at 3-5 (dissenting opinion). But the acceptance of counsel at an arraignment or similar proceeding only begs the question: acceptance of counsel for what? It is quite unremarkable that a suspect might want the assistance of an expert in the law to guide him through hearings and trial, and the attendant complex legal matters that might arise, but nonetheless might choose to [give on his own a forthright account of the events that occurred]. A court-made rule that prevents a suspect [from even making this choice] serves little purpose, especially given the regime ofMirandaandEdwards.
With these further remarks, I join in full the opinion of the Court.
First, theSixth Amendmentright to counsel plays a central role in ensuring the fairness of criminal proceedings in our system of justice. SeeGideonv.Wainwright,372 U.S. 335,344(1963);Powellv.Alabama,287 U.S. 45,57(1932).
Second, the right attaches when adversary proceedings, triggered by the government's formal accusation of a crime, begin. SeeBrewerv.Williams,430 U.S. 387,401(1977);Kirbyv.Illinois,406 U.S. 682,689(1972);Massiahv.United States,377 U.S. 201,206(1964).
Third, once this right attaches, law enforcement officials are required, in most circumstances, to deal with the defendant through counsel rather than directly, even if the defendant has waived hisFifth Amendmentrights. SeeMichiganv.Jackson,475 U.S. 625,633,636(1986) (waiverPage 178of right to presence of counsel is assumed invalid unless accused initiates communication);Mainev.Moulton,474 U.S. 159,176(1985) (Sixth Amendmentgives defendant right "to rely on counsel as a `medium' between him and the State"). Cf. ABA Model Rule of Professional Conduct 4.2 (2001) (lawyer is generally prohibited from communicating with a person known to be represented by counsel "about the subject of the representation" without counsel's "consent"); Green, A Prosecutor's Communications with Defendants: What Are the Limits?, 24 Crim. L. Bull. 283, 284, and n. 5 (1988) (version of Model Rule 4.2 or its predecessor has been adopted by all 50 States).
Fourth, the particular aspect of the right here at issue — the rule that the police ordinarily must communicate with the defendant through counsel — has important limits. In particular, recognizing the need for law enforcement officials to investigate "new or additional crimes" not the subject of current proceedings,Mainev.Moulton,supra, at 179, this Court has made clear that the right to counsel does not attach to any and every crime that an accused may commit or have committed, seeMcNeilv.Wisconsin,501 U.S. 171,175-176(1991). The right "cannot be invoked once for all future prosecutions," and it does not forbid "interrogation unrelated to the charge."Id., at 175, 178. In a word, as this Court previously noted, the right is "offense specific."Id., at 175.
This case focuses upon the last-mentioned principle, in particular upon the meaning of the words "offense specific." These words appear in this Court'sSixth Amendmentcase law, not in theSixth Amendment'stext. SeeU.S. Const., Amdt. 6(guaranteeing right to counsel "[i]n all criminal prosecutions"). The definition of these words is not self-evident. Sometimes the term "offense" may refer to words that are written in a criminal statute; sometimes it may refer generally to a course of conduct in the world, aspects of which constitute the elements of one or more crimes; andPage 179sometimes it may refer, narrowly and technically, just to the conceptually severable aspects of the latter. This case requires us to determine whether an "offense" — forSixth Amendmentpurposes — includes factually related aspects of a single course of conduct other than those few acts that make up the essential elements of the crime charged.
We should answer this question in light of theSixth Amendment'sbasic objectives as set forth in this Court's case law. At the very least, we should answer it in a way that does not undermine those objectives. But the Court today decides that "offense" means the crime set forth within "the four corners of a charging instrument," along with other crimes that "would be considered the same offense" under the test established byBlockburgerv.United States,284 U.S. 299(1932).Ante, at 9. In my view, this unnecessarily technical definition underminesSixth Amendmentprotections while doing nothing to further effective law enforcement.
For one thing, the majority's rule, while leaving theFifth Amendment'sprotections in place, threatens to diminish severely the additional protection that, under this Court's rulings, theSixth Amendmentprovides when it grants the right to counsel to defendants who have been charged with a crime and insists that law enforcement officers thereafter communicate with them through that counsel. See,e.g.,Michiganv.Jackson,supra, at 632 (Sixth Amendmentprevents police from questioning represented defendant through informants even whenFifth Amendmentwould not);Rhode Islandv.Innis,446 U.S. 291,300, n. 4 (1980) (FifthAmendment right, unlike Sixth, applies only in custodial interrogation).Justice Kennedy, Justice Scalia, andJustice Thomas, if not the majority, apparently believe these protections constitutionally unimportant, for, in their view, "the underlying theory ofJacksonseems questionable."Ante, at 1 (Kennedy, J., concurring). Both the majority andPage 180concurring opinions suggest that a suspect's ability to invoke hisFifth Amendmentright and "refuse any police questioning" offers that suspect adequate constitutional protection.Ante, at 8, n. 2 (majority opinion); see alsoante, at 2-3 (Kennedy, J., concurring). But that is not so.Jacksonfocuses upon a suspect — perhaps a frightened or uneducated suspect — who, hesitant to rely upon his own unaided judgment in his dealings with the police, has invoked his constitutional right to legal assistance in such matters. SeeMichiganv.Jackson,475 U.S., at 634, n. 7 ("`The simple fact that [a] defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly'") (quotingPeoplev.Bladel,421 Mich. 39,63-64,365 N.W.2d 56,67(1984)).Jacksonsays that, once such a request has been made, the police may not simply throw that suspect — who does not trust his own unaided judgment — back upon his own devices by requiring him to rely for protection upon that same unaided judgment that he previously rejected as inadequate. In a word, the police may not force a suspect who has asked for legal counsel to make a critical legal choice without the legal assistance that he has requested and that the Constitution guarantees. SeeMcNeilv.Wisconsin,supra, at 177-178 ("The purpose of theSixth Amendmentcounsel guarantee . . . is to `protec[t] the unaided layman at critical confrontations' with his `expert adversary'") (quotingUnitedStatesv.Gouveia,467 U.S. 180,189(1984)). The Constitution does not take away with one hand what it gives with the other. SeeGideonv.Wainwright,372 U.S., at 344(Sixth Amendmentmeans that a person charged with a crime need not "face his accusers without a lawyer to assist him");Michiganv.Jackson,supra, at 633, 635 (presuming "that the defendant requests the lawyer's services at every critical stage of the prosecution" even if the defendant fails to invoke hisFifth Amendmentrights at the time of interrogation); cf.Edwardsv.Arizona,451 U.S. 477,484-485(1981) (whenPage 181accused has expressed desire to deal with police through counsel, police may not reinitiate interrogation until counsel has been made available); ABA Ann. Model Rule of Professional Conduct 4.2, p. 398, comment. (4th ed. 1999) ("Rule 4.2 . . . exists to prevent lawyers from taking advantage of uncounseled laypersons and to preserve the integrity of the lawyer-client relationship").
For these reasons, theSixth Amendmentright at issue is independent of theFifth Amendment'sprotections; and the importance of thisSixth Amendmentright has been repeatedly recognized in our cases. See,e.g.,Michiganv.Jackson,supra, at 636 ("We conclude that the assertion [of the right to counsel] is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is theSixth Amendment").Justice Kennedyprimarily relies uponPattersonv.Illinois,487 U.S. 285(1988), in support of his conclusion thatJacksonis not good law. He quotesPatterson's statement that the Constitution does "`not ba[r] an accused from making aninitialelection as to whether'" to speak with the police without counsel's assistance.Ante, at 1-2 (quotingPattersonv.Illinois,supra, at 291).
This statement, however, cannot justify the overruling ofJackson. That is because, inPattersonitself, this Court noted, "as a matter of some significance," that, at the time he was interrogated,the defendant hadneither retained nor accepted the appointment of counsel.487 U.S., at 290, n. 3. We characterized our holding inJacksonas having depended upon "the fact that the accused `ha[d] asked for the help of a lawyer' in dealing with the police,"487 U.S., at 291(quotingMichiganv.Jackson,supra, at 631), and explained that, "[o]nce an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect,"487 U.S., at 290, n. 3 (citingMainev.Moulton,474 U.S., at 176).Page 182Justice Kennedyalso criticizesJacksonon the ground that it prevents a suspect "from . . . making th[e] choice" to "give . . . a forthright account of the events that occurred."Ante, at 3. But that is not so. A suspect may initiate communication with the police, thereby avoiding the risk that the police induced him to make, unaided, the kind of critical legal decision best made with the help of counsel, whom he has requested.
UnlikeJustice Kennedy, the majority does not callJacksonitself into question. But the majority would undermine that case by significantly diminishing theSixth Amendmentprotections that the case provides. That is because criminal codes are lengthy and highly detailed, often proliferating "overlapping and related statutory offenses" to the point where prosecutors can easily "spin out a startlingly numerous series of offenses from a single . . . criminal transaction."Ashev.Swenson,397 U.S. 436,445, n. 10 (1970). Thus, an armed robber who reaches across a store counter, grabs the cashier, and demands "your money or your life," may through that single instance of conduct have committed several "offenses," in the majority's sense of the term, including armed robbery, assault, battery, trespass, use of a firearm to commit a felony, and perhaps possession of a firearm by a felon, as well. A person who is using and selling drugs on a single occasion might be guilty of possessing various drugs, conspiring to sell drugs, being under the influence of illegal drugs, possessing drug paraphernalia, possessing a gun in relation to the drug sale, and, depending upon circumstances, violating various gun laws as well. A protester blocking an entrance to a federal building might also be trespassing, failing to disperse, unlawfully assembling, and obstructing Government administration all at one and the same time.
The majority's rule permits law enforcement officials to question those charged with a crime without first approaching counsel, through the simple device of asking questions about any other related crime not actually charged inPage 183the indictment. Thus, the police could ask the individual charged with robbery about, say, the assault of the cashier not yet charged, or about any other uncharged offense (unless underBlockburger's definition it counts as the "same crime"), allwithout notifying counsel. Indeed, the majority's rule would permit law enforcement officials to question anyone charged with any crime in any one of the examples just given about his or her conduct on the single relevant occasion without notifying counsel unless the prosecutor has charged every possible crime arising out of that same brief course of conduct. WhatSixth Amendmentsense — what common sense — does such a rule make? What is left of the "communicate through counsel" rule? The majority's approach is inconsistent with any common understanding of the scope of counsel's representation. It will undermine the lawyer's role as "`medium'" between the defendant and the government.Mainev.Moulton, supra, at 176. And it will, on a random basis, remove a significant portion of the protection that this Court has found inherent in theSixth Amendment.
In fact, under the rule today announced by the majority, two of the seminal cases in ourSixth Amendmentjurisprudence would have come out differently. InMainev.Moulton, which the majority points out "expressly referred to the offense-specific nature of theSixth Amendmentright to counsel,"ante, at 7, we treated burglary and theft as the same offense forSixth Amendmentpurposes. Despite the opinion's clear statement that "[i]ncriminating statements pertaining to other crimes, as to which theSixth Amendmentright has not yet attached, are, of course, admissible at a trial of those offenses,"474 U.S., at 180, n. 16, the Court affirmed the lower court's reversal of both burglary and theft charges even though, at the time that the incriminating statements at issue were made, Moulton had been charged only with theft by receiving,id., at 162, 167, 180. Under the majority's rule, in contrast, because theft by receivingPage 184and burglary each required proof of a fact that the other did not, only Moulton's theft convictions should have been overturned. Compare Me. Rev. Stat. Ann., Tit.17-A, § 359(1981) (theft) (requiring knowing receipt, retention, or disposal of stolen property with the intent to deprive the owner thereof), with § 401 (burglary) (requiring entry of a structure without permission and with the intent to commit a crime).
InBrewerv.Williams, the effect of the majority's rule would have been even more dramatic. Because first-degree murder and child abduction each required proof of a fact not required by the other, and because at the time of the impermissible interrogation Williams had been charged only with abduction of a child, Williams' murder conviction should have remained undisturbed. See430 U.S., at 390,393-395,406. Compare Iowa Code §690.2(1950 and Supp. 1978) (first-degree murder) (requiring a killing) with Iowa Code §706.2(1950) (repealed 1978) (child-stealing) (requiring proof that a child under 16 was taken with the intent to conceal the child from his or her parent or guardian). This is not to suggest that this Court has previously addressed and decided the question presented by this case. Rather, it is to point out that the Court's conception of theSixth Amendmentright at the time thatMoultonandBrewerwere decided naturally presumed that it extended to factually related but uncharged offenses.
At the same time, the majority's rule threatens the legal clarity necessary for effective law enforcement. That is because the majority, aware that the word "offense" ought to encompass something beyond "the four corners of the charging instrument," imports intoSixth Amendmentlaw the definition of "offense" set forth inBlockburgerv.UnitedStates,284 U.S. 299(1932), a case interpreting the Double Jeopardy Clause of theFifth Amendment, which Clause uses the word "offence" but otherwise has no relevance here. WhateverFifth AmendmentvirtuesBlockburgerPage 185may have, to import it into thisSixth Amendmentcontext will work havoc.
In theory, the test says that two offenses are the "same offense" unless each requires proof of a fact that the other does not. Seeante, at 9 (majority opinion). That means that most of the different crimes mentioned above are not the "same offense." Under many States' laws, for example, the statute defining assault and the statute defining robbery each requires proof of a fact that the other does not. Compare,e.g., Cal. Penal Code Ann. §211(West 1999) (robbery) (requiring taking of personal property of another) with § 240 (assault) (requiring attempt to commit violent injury). Hence the extension of the definition of "offense" that is accomplished by the use of theBlockburgertest does nothing to address the substantial concerns about the circumvention of theSixth Amendmentright that are raised by the majority's rule.
But, more to the point, the simple-soundingBlockburgertest has proved extraordinarily difficult to administer in practice. Judges, lawyers, and law professors often disagree about how to apply it. See,e.g.,UnitedStatesv.Woodward,469 U.S. 105,108(1985)(per curiam)(holding that lower court misappliedBlockburgertest). CompareUnited Statesv.Dixon,509 U.S. 688,697-700(1993) (opinion ofScalia, J.) (applyingBlockburgerand concluding that contempt is same offense as underlying substantive crime), with509 U.S., at 716-720(Rehnquist, C. J., concurring in part and dissenting in part) (applyingBlockburgerand deciding that the two are separate offenses). The test has emerged as a tool in an area of our jurisprudence thatThe Chief Justicehas described as "a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator."Albernazv.United States,450 U.S. 333,343(1981). Yet the Court now asks, not the lawyers and judges who ordinarily work with double jeopardy law, but police officers in the field, to navigateBlockburgerwhen they questionPage 186suspects. Cf.New Yorkv.Belton,453 U.S. 454,458(1981) (noting importance of clear rules to guide police behavior). Some will apply the test successfully; some will not. Legal challenges are inevitable. The result, I believe, will resemble not so much the Sargasso Sea as the criminal law equivalent of Milton's "Serbonian Bog . . . Where Armies whole have sunk."
There is, of course, an alternative. We can, and should, define "offense" in terms of the conduct that constitutes the crime that the offender committed on a particular occasion, including criminal acts that are "closely related to" or "inextricably intertwined with" the particular crime set forth in the charging instrument. This alternative is not perfect. The language used lacks the precision for which police officers may hope; and it requires lower courts to specify its meaning further as they apply it in individual cases. Yet virtually every lower court in the United States to consider the issue has defined "offense" in theSixth Amendmentcontext to encompass such closely related acts. Seeante, at 5, n. 1 (majority opinion) (citing cases from the Third, Fourth, Fifth, Sixth, and Ninth Circuits as well as state courts in Massachusetts and Pennsylvania);Taylorv.State,726 So.2d 841,845(Fla.App. 1999);Peoplev.Clankie,124 Ill.2d 456,462-466,530 N.E.2d 448,451-453(1988);Statev.Tucker,137 N.J. 259,277-278,645 A.2d 111,120-121(1994), cert. denied,513 U.S. 1090(1995). These courts have found offenses "closely related" where they involved the same victim, set of acts, evidence, or motivation. See,e.g.,Taylorv.State,supra, at 845 (stolen property charges and burglary);Statev.Tucker,supra, at 278,645 A.2d, at 121(burglary, robbery, and murder of home's occupant);In re Pack,420 Pa. Super. 347,355-356,616 A.2d 1006,1010(1992) (burglary, receiving stolen property, and theft charges), appeal denied,535 Pa. 669,634 A.2d 1117(1993). They have found offenses unrelated where time, location, or factual circumstances significantly separated thePage 187one from the other. See,e.g.,Commonwealthv.Rainwater,425 Mass. 540,547-549, and n. 7,681 N.E.2d 1218,1224, and n. 7 (1997) (vehicle theft charge and earlier vehicle thefts in same area), cert. denied,522 U.S. 1095(1998); Whittleseyv.State,340 Md. 30,56-57,665 A.2d 223,236(1995) (murder and making false statements charges), cert. denied,516 U.S. 1148(1996);Peoplev.Dotson,214 Ill. App.3d 637,646,574 N.E.2d 143,149(murder and weapons charges), appeal denied,141 Ill.2d 549,580 N.E.2d 123(1991).
One cannot say in favor of this commonly followed approach that it is perfectly clear — only that, because it comports with common sense, it is far easier to apply than that of the majority. One might add that, unlike the majority's test, it is consistent with this Court's assumptions in previous cases. SeeMainev.Moulton,474 U.S., at 162,167,180(affirming reversal of both burglary and theft convictions);Brewerv.Williams,430 U.S., at 389,390,393,406(affirming grant of habeas which vacated murder conviction). And, most importantly, the "closely related" test furthers, rather than undermines, theSixth Amendment's"right to counsel," a right so necessary to the realization in practice of that most "noble ideal," a fair trial.Gideonv.Wainwright,372 U.S., at 344.
The Texas Court of Criminal Appeals, following this commonly accepted approach, found that the charged burglary and the uncharged murders were "closely related." All occurred during a short period of time on the same day in the same basic location. The victims of the murders were also victims of the burglary. Cobb committed one of the murders in furtherance of the robbery, the other to cover up the crimes. The police, when questioning Cobb, knew that he already had a lawyer representing him on the burglary charges and had demonstrated their belief that this lawyer also represented Cobb in respect to the murders by asking his permission to question Cobb about the murders on previous occasions. The relatedness of the crimesPage 188is well illustrated by the impossibility of questioning Cobb about the murders without eliciting admissions about the burglary. See,e.g., Tr. 157 (Feb. 19, 1997) (testimony by police officer who obtained murder confession) ("Basically what he told us is he had gone over to the house to burglarize it and nobody was home"); 22 Record, State's Exh. 20 (typed statement by Cobb) (admitting that he committed the murders after entering the house and stealing stereo parts). Nor, in my view, did Cobb waive his right to counsel. Seesupra, at 4-5. These considerations are sufficient. The police officers ought to have spoken to Cobb's counsel before questioning Cobb. I would affirm the decision of the Texas court.
Consequently, I dissent.Page 189
- Brifs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, David M. Gormley, Associate Solicitor, and Elise W. Porter and Morman E. Plate, Assistant Solicitors, and by the Attorneys General for their respective State as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Bill Lockyer of California, Ken Salazar of Collorado, John M. Bailey of Connecticut, Robert A. Butterworth of Florida, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, Michael C. Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Mark L. Earley of Virginia, and Gay Woodhouse of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations et al. by Patrick F. Philibin and Stephen R. McSpadden.
Sheri Lynn Johnson and Jeffrey J. Pokorak filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.
Stephen G. Tipps and Jennifer L. Walker Elrod filed a brief for the Texas District County Attorneys Association et al. as amici curiae. ↩ - See,e.g.,United Statesv.Covarrubias,179 F.3d 1219,1223-1224(CA9 1999);United Statesv.Melgar,139 F.3d 1005,1013(CA4 1998);United Statesv.Doherty,126 F.3d 769,776(CA6 1997);United Statesv.Arnold,106 F.3d 37,41(CA3 1997);United Statesv.Williams,993 F.2d 451,457(CA5 1993);Commonwealthv.Rainwater,425 Mass. 540,556,681 N.E.2d 1218,1229(1997);In re Pack,616 A.2d 1006,1010-1011, (420 Pa. Super. 347,354-356). ↩
- Curiously, while predicting disastrous consequences for the core values underlying theSixth Amendment, seepost, at 3-7 (opinion ofBreyer, J.), the dissenters give short shrift to theFifth Amendment'srole (as expressed inMirandaandDickerson) in protecting a defendant's right to consult with counsel before talking to police. Even though theSixth Amendmentright to counsel has not attached to uncharged offenses, defendants retain the ability underMirandato refuse any police questioning, and, indeed, charged defendants presumably have met with counsel and have had the opportunity to discuss whether it is advisable to invoke thoseFifth Amendmentrights. Thus, in all but the rarest of cases, the Court's decision today will have no impact whatsoever upon a defendant's ability to protect hisSixth Amendmentright.
It is also worth noting that, contrary to the dissent's suggestion, seepost, at 1-2, 3, there is no "background principle" of ourSixth Amendmentjurisprudence establishing that there may be no contact between a defendant and police without counsel present. The dissent would expand theSixth Amendmentright to the assistance of counsel in a criminal prosecution into a rule which "`exists to prevent lawyers from taking advantage of uncounseled lay persons and to preserve the integrity of the lawyer-client relationship.'"Post, at 5 (quoting ABA Ann. Model Rule of Profesional Conduct 4.2 (4th ed. 1999)). Every profession is competent to define the standards of conduct for its members, but such standards are obviously not controlling in interpretation of constitutional provisions. TheSixth Amendmentright to counsel is personal to the defendant and specific to the offense. ↩ - In this sense, we could just as easily describe theSixth Amendmentas "prosecution specific," insofar as it prevents discussion of charged offenses as well as offenses that, underBlockburger, could not be the subject of a later prosecution. And, indeed, the text of theSixth Amendmentconfines its scope to "all criminalprosecutions." ↩