¶1(dissenting).
¶2I respectfully dissent.
¶3At Ingold’s arraignment on a charge of burglary in the third degree, an attorney was appointed to represent him. Thereafter, he was escorted back to the holding area by a deputy sheriff. The area was occupied by several other inmates.
¶4Ingold commented to the group that they did not really have a case against him and that he was only picked up a few blocks from the burglary because he had a prior record.
¶5The deputy then inserted himself into the conversation and said, “They must have something more than that.” At this point, Ingold stated, “Well, they say they had my footprint on the back door of the Market Bar-B-Que, but why would I try to kick a door in when it opened out?” This statement could be regarded as incriminating.
¶6I do not contend that it was necessary that Ingold be given the Miranda warning (right to counsel, right to remain silent, etc.). This was not an interrogation and hence the V Amendment protection against self-incrimination does not apply. Rather, this is a VI Amendment violation.
¶7I am not aware of higher court precedent in exact point. The majority opinion cites authorities that are persuasive but not necessarily determinative under the facts here presented. While I concur the deputy’s comment did not amount to deliberate elicitation under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the words and actions of the deputy were such that he should have known were “reasonably likely to elicit an incriminating response.” See Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980).
¶8The VI Amendment guarantees the accused, at least after the initiation of formal *349charges, the right to rely on counsel as a “medium” between him and the state. Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985).
¶9To me, there is a vast difference between V and VI Amendment constitutional protections. In the former, law enforcement officers are gathering evidence, often under hazardous circumstances, when the crime is recent and the pursuit fresh. Exacting formalities should not be required by judicial intervention into what higher authority has referred to as the “highly competitive business of ferretting out crime.”
¶10Ingold’s VI Amendment right to have the assistance of counsel for his defense rests on quite another foundation. Here, the complaint had been issued already. The prosecution had a prima facie case (or at least should have had) and, apart from the development of scientific evidence or the location 'of then unknown witnesses, its investigation was complete. Appellant had entered the protective walls of the courtroom and counsel had been appointed to assist him in his defense. Yet within minutes the deputy had declared to appellant that the prosecution must have more evidence than just defendant’s presence near the scene and a prior record. This observation, however innocently made, could scarcely fail to provoke a response in the absence of the attorney who had just been appointed.
¶11While the “totality of the circumstances” test, State v. Jackson, 351 N.W.2d 352 (1984), might reasonably convince others to the contrary, for my part I feel compelled to conclude it was error for the prosecutor to introduce, and for the trial court to receive, the uneounseled statement into evidence. Admittedly, the issue is close; as such, I would adopt the theory of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986): “It is the State that has the burden of establishing a valid waiver” and “doubts must be resolved in favor of protecting the constitutional claim.”
¶12I would remand this case for a new trial, to be held without use of the statement.