State v. Cassell

¶1dissenting, with whom BURKE, Justice, joins.

¶2I believe the Miranda warning given Cas-sell was adequate under the circumstances. I agree with the majority that:

Although we recognize that “the words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective,” we are nevertheless concerned that the substance of what the Supreme Court required in Miranda be imparted to a suspect undergoing custodial interrogation in clear, understandable language which a layperson can comprehend and on which one can knowingly act. [footnote omitted]

¶3*420The majority concludes that the warnings were defective in that they failed to advise Cassell of his present right to consult with an attorney, his right to have one appointed prior to questioning and to have counsel present with him during interrogation. Under the circumstances under which the warnings were given, it seems to me that they could have conveyed no other meaning to Cassell, although admittedly, it would have been preferable had the officer read the full warning.

¶4The substance of the warnings should be determined as of the time they were given, and they should be evaluated according to the meaning they would have reasonably communicated to Cassell. Cassell had not been placed under arrest, but had been asked to accompany the troopers back to Anchorage “to clear up matters and so I might talk to him.” He had not been accused of a crime or advised that charges were being lodged against him. The warnings were given in the context of an investigatory questioning. Cassell was first informed:

Q. Okay, you know that you have the right to decide that you don’t have to say anything did he advise you of that? I’d like to tell you that now because you don’t have to talk to us if you don’t want to. If you do decide to talk to us or make any statements it can be used against you in a court do you understand that?

A. Yes.

¶5He was then told:

Q. And that you have a right to have an attorney and if you cannot afford to have an attorney one could be arranged to be appointed for you. Does that make sense what I’ve been telling you?

A. Ya.

¶6The offer of an attorney could only relate to the questioning, not to some later unmentioned proceedings. It seems inconceivable to me that this simple warning could have been construed by Cassell as meaning that he would have the right to an attorney at some future unspecified time, but not in connection with the interview, which as far as he had been advised, was the sole reason he had been requested to accompany the officers.

¶7In Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969), a majority of this court, with Justice Rabinowitz dissenting, approved a warning very similar to that involved in this case. Rubey, however, was formally arrested for the offense of assignation, after being apprehended immediately after completing an act of prostitution. We stated:

Miranda does require that a defendant be warned of his right to the “presence of an attorney” — of the right to have “counsel present” during any questioning. But the fact that Tannenbaum did not specifically tell appellant that she had the right to have counsel “present” during questioning does not mean that she was not advised of her right in this respect. He told appellant, prior to questioning, that he was a police officer, that he intended to ask her questions in connection with her arrest, that she did not have to answer any questions, that anything she did say would be used against her, and that she was entitled to an attorney. He then asked her, also prior to interrogation, if she wanted to “call an attorney” and she answered “no.”

¶8Id. at 472 (footnote omitted).

¶9While the inquiry pertaining to calling an attorney was not made specifically to Cas-sell, the circumstances of his questioning, in contrast to that of Rubey, clearly conveyed that the offer of counsel applied to the interrogation. Rubey, unlike Cassell, had been apprehended in flagrante delicto and placed under arrest. Unlike Cassell, absent the offer to telephone an attorney, she could arguably have understood that the right to counsel applied to future court proceedings.

¶10It seems to me that requiring the additional formal incantations of Miranda under the circumstances involved in questioning Cassell elevates the words of Miranda to *421the very ritualistic formula we have disapproved.1