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iLaw Dictionary
California
Law Dictionary
Right to Counsel
( People v. Woods )
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Criminal Law-Right to Counsel Arises After the First Formal Charging Proceeding
(People v. Woods)

Woods also argues the police violated his right to counsel under Massiah v. United States (1964) 377 U.S. 201 by using Amos to elicit incriminating statements from him at the deli. Although formal charges had not been brought against Woods at that time, the police had the deli surrounded and they were in the process of serving search warrants at Woods’ clubs and residence. In Woods’ opinion, this means the case had shifted from investigation to accusation, thereby triggering his right to counsel. At the very least, he maintains the matter should be remanded for an evidentiary hearing on the issue. No such hearing is required because the undisputed facts establish Woods’ Sixth Amendment rights were not violated.

Under Massiah, the prosecution may not use evidence obtained in violation of the defendant’s Sixth Amendment right to counsel. (Massiah v. United States, supra, 377 U.S. at p. 207.) The United States Supreme Court has stated the right to counsel attaches only after the defendant has been subjected to adversarial judicial proceedings through formal charges, preliminary hearing, indictment, information or arraignment. (See, e.g., United States v. Gouveia (1984) 467 U.S. 180, 187; Kirby v. Illinois (1972) 406 U.S. 682, 689.) The Supreme Court has also stated the right to counsel “becomes applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the ‘intricacies . . . of law’ [citation] is needed to assure that the prosecution’s case encounters ‘the crucible of meaningful adversarial testing.’ [Citation.]” (Moran v. Burbine (1986) 475 U.S. 412, 430, italics added.)

Seizing on the italicized phrase, a few courts have held open the possibility that a case could shift from investigation to accusation before the filing of formal charges. (See, e.g., Roberts v. Maine (1st Cir. 1995) 48 F.3d 1287, 1291 [“We recognize the possibility that the right to counsel might conceivably attach before any formal charges are made”] and the dissenting opinion in United States v. Hayes (9th Cir. 2000) 231 F.3d 663, upon which Woods relies, which equated the taking of material witness depositions with the initiation of formal charges.) But the United States Supreme Court has never given credence to this view, and in “determin[ing] when Sixth Amendment rights attach, the California Supreme Court follows the holdings of the United States Supreme Court.” (People v. Wheelock (2004) 117 Cal.App.4th 561, 566 [right to counsel does not attach during extradition proceedings].) Thus far, the Supreme Court has recognized attachment of the right to counsel only “after the first formal charging proceeding.” (Moran v. Burbine, supra, 475 U.S. at p. 428; see generally Montana & Galotto, Right to Counsel: Courts Adhere to Bright-Line Limits (2001) 16 Crim. Just. 4.)

But even if there were still fluidity in the law on this issue, our holding would be the same. It is clear to us the prosecution was still at the investigatory, fact-finding stage when it enlisted Amos to talk with Woods. True, Amos was trying to elicit incriminating statements from Woods, but that’s precisely what the police do when they are trying to make a case against a suspect through means of an interrogation. “For an interrogation, no more or less than for any other ‘critical’ pretrial event, the possibility that the encounter may have important consequences at trial, standing alone, is insufficient to trigger the Sixth Amendment right to counsel. As Gouveia made clear, until such time as the ‘“‘government has committed itself to prosecute, and . . . the adverse positions of the government and defendant have solidified,’”’ the Sixth Amendment right to counsel does not attach. [Citations.]” (Moran v. Burbine, supra, 475 U.S. at p. 432.)

Despite the secret recording of Woods, the search warrants, and the police presence at the deli, we hold there was no Sixth Amendment violation in this case. “Any other [result] would be inconsistent with the United States Supreme Court’s recognition that, before the formal instigation of charges, the investigative functions of the police should not be ‘unnecessarily frustrate[d]’ by overprotective application of the Sixth Amendment. [Citations.]” (People v. Wheelock, supra, 117 Cal.App.4th at p. 569, fn. omitted.)

The judgment is affirmed.

People v. Woods-G030494-7/21/04-Prosecutorial Misconduct

Date Posted	Docket #/ File Format	Description
Jul 21 2004	G030494 [PDF] [DOC]	P. v. Woods 7/21/04 CA4/3

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