Adams v. State

MEREDITH, Judge. In the early morning hours of April 13, 2006, Marshall Adams, appellant, stabbed and killed Leo Morris. Upon his arrest, Adams asserted that Morris had sought to purchase cocaine from him, but when the two met to complete the sale, Morris had threatened Adams with a knife and attempted to rob him of the cocaine. Adams maintained that he had merely defended himself, but also asserted that he had “blacked out” during the altercation and could not fully recall the details.

Adams was charged in the Circuit Court for Washington County with first-degree murder, second-degree murder, and manslaughter. Defense counsel entered an appearance in his case. When the lead detective in the case subsequently visited Adams in the detention center to serve upon Adams a notice of the State’s intention to seek a sentence of life without the possibility of parole, Adams made inculpatory statements to the detective. Although Adams moved to have those statements excluded at trial, the circuit court denied his motion to suppress the statements.

At trial, the State introduced evidence of the victim’s numerous wounds, including a wound to the victim’s right hand and various defensive wounds to the victim’s left arm. Over Adams’s objection, the State’s expert witness in “crime scene reconstruction” noted that the victim was right-handed, and opined that the pattern of the wounds suggested that the victim’s right hand was wounded early in the struggle, forcing him to attempt to defend himself with his non-dominant arm. Because Adams alleged that the victim’s murder was precipitated by a robbery attempt that led to mutual combat, he requested that the court instruct the jury on the doctrine of hot-blooded response to legally adequate provocation. The circuit court declined to do so, ruling that the evidence presented at trial did not warrant that instruction. ⁴⁷³ The jury convicted Adams of first-degree murder, and the circuit court sentenced Adams to life in prison, with all but 40 years suspended.

Adams noted this appeal. Questions Presented We have rephrased Adams’s questions as follows: 1 (1) Did the circuit court err in failing to suppress the statement Adams made on November 29, 2006, in which Adams admitted that he stabbed Morris multiple times, where the State elicited the incriminating statement outside the presence of Adams’s attorney of record? (2) Did the circuit court err in declining to instruct the jury on the rule of hot-blooded response to legally adequate provocation? (3) Did the circuit court abuse its discretion in admitting expert opinion testimony about the probable sequence of the victim’s wounds?

Because we hold that the admission of Adams’s second incriminating statement violated his Sixth Amendment right to counsel, we vacate the judgment and remand for a new trial. We also answer “yes” to question 2, and “no” to question 3. Facts and Procedural History Early in the morning of April 13, 2006, various residents of Bethel Gardens, a community on Bethune Avenue in Hagerstown, Maryland, were awakened by the sounds of Adams and Morris fighting outside on the sidewalk. The residents testified that they heard someone say “Please don’t kill me,” ⁴⁷⁴ “You’re gonna kill me,” or “Don’t kill me man.” None of the residents witnessed which man made those pleas.

One of the witnesses, a paramedic, testified that when he reached Morris’s body, Morris had no pulse and Adams had fled. Detective Shane Blankenship, of the Hagerstown Police Department, was assigned to investigate the case. Based upon review of images captured by various public security cameras, the investigation focused upon Adams as a suspect. Blankenship had known Adams since 1990, when Adams “was a little kid.” Adams was arrested in Baltimore for a parole violation.

Detective Blankenship and another detective drove to Baltimore, and, pursuant to a writ of habeas corpus, transported Adams to Hagerstown for questioning. In accordance with Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), Detective Blankenship advised Adams of his rights, and Adams executed a Miranda waiver form. Adams made inculpatory statements to the detectives, and acknowledged being involved in a knife fight with Morris on the night in question. Part of the interview was recorded on audiotape, and that recording included the following version of the confrontation.

Adams said that he had planned to meet with Morris that morning because Morris wished to buy cocaine from Adams. When they met, however, instead of paying Adams for the drugs, Morris drew a knife and demanded the drugs from Adams. In the recorded statement, Adams said that, “when [Morris] made the aggressive step, I like grabbed the knife. And we just struggled like after that____ And I blacked out.” Blankenship asked, “So you blacked out?” Adams replied: “Yeah.

And one thing led to another.” Blankenship asked, “What’d you do then?” Adams said: “After I blacked out and everything happens like I seen him step off. And when he stepped off, I was able to get away.” Adams was then charged with first-degree murder, second-degree murder, and manslaughter. He was incarcerated in the detention center pending trial. ⁴⁷⁵ On November 29, 2006, the prosecutor’s office asked Detective Blankenship to visit Adams in the detention center and personally serve on Adams the notice of the State’s intent to seek a sentence of life without the possibility of parole. 2 Detective Blankenship asked Detective Tammy Jurado to accompany him to the detention center. Explaining his reason for asking another detective to accompany him, Detective Blankenship later testified: The implications of this document are pretty clear, very serious.

It’s not something I wanted to do alone. And quite simply I wanted someone else there as a witness in case something happened, in case something was said that would have been unusual. And as a matter of practice we just normally don’t go out by ourselves to serve documents like this, especially for these types of cases. Q. [BY PROSECUTOR] Now in your experience as a police officer as well as in the detective bureau, you’ve had — had you had occasions where suspects just blurt out statements?

A. Yes. Q. And therefore Detective Jurado would be a witness to any such blurt? A. That’s right. At the detention center, the detectives met with Adams in the library.

Detective Blankenship explained during his testimony at the suppression hearing: “They have other interview rooms but the library is a little more comfortable ... a little more personable.” Adams’s attorney, who had entered an appearance in the case months earlier, was not notified that ⁴⁷⁶ the detectives intended to meet and confer with Adams, and was not present at the meeting. - At the hearing on Adams’s motion to suppress the statements Adams made during the discussion on November 29, 2006, Detective Blankenship testified as follows regarding the encounter: Q. [BY PROSECUTOR] What was your intention when you went out to the jail that day? A. Just to serve the document. Q. Did you give him the paperwork that you were assigned to give him? A. Yes I did.

Q. And uh did you say anything while you were giving it to him? A. Well I asked him to read the documents because if he had any questions about those documents I wanted to be there to answer questions for him. Q. Now after he read the document did he make any statements to you? A. Yes.

Something he said was you know “I’m not feeling this.” He was reading the document and he was looking at the document and he just started kind of shaking his head and I could tell he was becoming upset. It appeared to me like he was becoming a little bit angry and he just kind of said several times you know “Man I’m not feeling this.” Q. Did he ask you any questions about what this document meant? A. He wanted to know why the State was coming after him so hard for this particular case____ I can’t remember his exact words but it was something to that effect, ‘Why are they coming after me for this so hard.” Q. Did you make any statements as a result of that? ⁴⁷⁷ A. Well I did. Yes I did.

Q. And what did you say? A. Well I was taken — I didn’t expect that question to come from him and I told him “Well it’s because you stabbed a guy 32 times.” Q. When you said that, did you expect to elicit any other information out of him? A. No he asked the question, I gave him an answer. That was it.

Q. As far as you were concerned that was it. A. Yes. Q. Okay. A. It was just an off the cuff answer from me.

Probably not very appropriate but it’s what came out. Q. Based on your understanding of why we were going to go forward with that type— A. Yes. Q. —of potential sentence. A. Yes.

Q. What if anything did Marshall say as a result of that statement? A. He said that he didn’t stab the guy 32 times. He said he only stabbed the guy seven times. Q. And in fact he started to describe where he stabbed the victim?

A. Yes. Q. Did you stop him at any point? A. No I did not. Q. Did you question him?

A. No I did not. Q. Did you say anything else to him before you left that room? A. No I didn’t respond to his comments, I sat there silent. ⁴⁷⁸ During cross-examination at the suppression hearing, Detective Blankenship testified as follows: Q. [BY DEFENSE COUNSEL] Mr. Adams never contacted you to come to the jail, correct? A. No he didn’t.

Q. And you knew he had an attorney, correct? A. I did yes. Q. ... [Y]ou asked him if he had been warned that the police were coming to serve him? A. Yes.

Q. Had anyone told you to tell Mr. Adams that his defense attorney should have or could have warned him? A. No. Q. ... Were you directed to contact defense [sic] prior to serving him with that document? A. No I was not.

Q. Were there discussions with you about giving notice to his attorney prior to talking to him? A. No. Q. You didn’t [M]irandize him at that moment, correct? A. He was not [M]irandized nor was he given any kind of warning. Q. So prior to your asking him a question, you did not tell him he had a Fifth Amendment right to remain silent, correct?

A. No I did not. Q. Nor that he had a right to have his attorney present in any capacity, correct? A. That’s correct. Defense counsel proffered to the suppression court that the defense attorneys were not “contacted that someone was going ⁴⁷⁹ to the jail to talk to our client.” The prosecuting attorney stipulated, “We don’t dispute that.” The motion to suppress was denied.

The suppression court concluded: I don’t find that Detective Blankenship’s statements to the defendant on November the 29th were reasonably likely to elicit an incriminating response and I find that the defendant’s statement on the 29th was uncoerced, un-tricked and unexpected by Detective Blankenship. At trial, the State introduced forensic evidence that Adams stabbed Morris 32 times. The State also introduced Adams’s statement that he had blacked out and did not remember stabbing Morris. Over Adams’s objection, the State also introduced Adams’s contradictory statement that he had stabbed Morris seven times.

We will review the facts giving rise to Adams’s claims that the trial court erred in admitting certain expert testimony and in failing to give a requested jury instruction as part of the discussion of those issues. As noted above, the jury found Adams guilty of first-degree murder, and the circuit court sentenced him to life in prison with all but 40 years suspended. Adams filed a timely notice of appeal. Discussion I. Suppression In Massey v. State, 173 Md.App. 94 , 917 A.2d 1175 (2007), this Court reviewed the applicable standard of review for a circuit court’s disposition of a motion to suppress evidence at trial: In reviewing the court’s disposition of a motion to suppress, “we look only to the record of the suppression hearing and do not consider the evidence admitted at trial.” In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997).

In this limited review, we consider the evidence and reasonable inferences drawn therefrom in the light most favorable ⁴⁸⁰ to the prevailing party, in this instance the State. Id. We review the factual findings of the motions court for clear error. Byndloss v. State, 391 Md. 462, 477 , 893 A.2d 1119 (2006).

Although we defer to the hearing judge’s findings of fact, we must make a de novo constitutional evaluation by “reviewing] independently the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law[.]” See Whiting v. State, 389 Md. 334, 345 , 885 A.2d 785 (2005). Id. at 100-101 , 917 A.2d 1175 . Accord Prioleau v. State, 411 Md. 629, 638 , 984 A.2d 851 (2009). Adams argues that the circuit court erred in denying his motion to suppress the statement he made to the detectives the day he was served with the State’s notice to seek a life sentence.

It is Adams’s contention that Detective Blankenship’s accusatory comment that the State was seeking a harsh penalty because Adams “stabbed [Morris] 32 times” was the functional equivalent of interrogation outside the presence of counsel, and that it foreseeably prompted Adams to respond with an incriminating statement which the State introduced to contradict earlier statements made by Adams. The Sixth Amendment of the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” As the Supreme Court noted in Iowa v. Tovar, 541 U.S. 77, 87 , 124 S.Ct. 1379 , 158 L.Ed.2d 209 (2004): “The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all ‘critical stages’ of the criminal process.” In Lodowski v. State, 307 Md. 233, 247-49 , 513 A.2d 299 (1986), the Court of Appeals recognized that the right to counsel assured by the Maryland Declaration of Rights, Articles 21, 22, and 24, is similar. In Maine v. Moulton, 474 U.S. 159 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985), the Supreme Court held that the state violated the Sixth Amendment right of an accused who was represented by counsel when the police persuaded a co-defendant to surreptitiously record incriminating statements ⁴⁸¹ while the accused was waiting for trial. The Court observed, id. at 168-69 , 106 S.Ct. 477 (footnote omitted): The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice.

Embodying “a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself,” Johnson v. Zerbst, 304 U.S. 458, 462-463 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), the right to counsel safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding. In Moulton , the Court recognized the importance of representation prior to trial, noting that “to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.” Id. at 170 , 106 S.Ct. 477 . The Court stated, 474 U.S. at 177 n. 14, 106 S.Ct. 477 (emphasis added): The Sixth Amendment protects the right of the accused not to be confronted by an agent of the State regarding matters as to which the right to counsel has attached without counsel being present. This right was violated as soon as the State’s agent engaged Moulton [the accused] in conversation about the charges pending against him.

In Michigan v. Harvey, 494 U.S. 344, 357-358 , 110 S.Ct. 1176 , 108 L.Ed.2d 293 (1990), the Court described the Sixth Amendment right as follows: The accused’s right to the assistance of counsel is not limited to participation in the trial itself. A defendant is entitled to the aid of his lawyer from the time of arraignment “when consultation, thoroughgoing investigation and preparation [are] vitally important,” Powell v. Alabama, 287 U.S. 45, 57 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932), through the time of first appeal. See Penson[ v. Ohio], 488 U.S. [75], at 85[, 109 S.Ct. 346 , 102 L.Ed.2d 300 (1988)]; Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963). Just as the Sixth Amendment’s right ⁴⁸² to “the Assistance” of counsel necessarily encompasses a right to the effective assistance of counsel, see [U.S. v.] Cronic, 466 U.S. [648], at 654-655[, 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984)]; Avery v. Alabama, 308 U.S. 444, 446 , 60 S.Ct. 321 , 84 L.Ed. 377 (1940), so too the accused’s right to have counsel “for his defence” in a “criminal prosecutio[n]” includes the right to rely on counsel after the government’s role has shifted from investigation to accusation and the “defendant finds himself faced with the prosecutorial forces of organized society.” Kirby v. Illinois, 406 U.S. 682, 689 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972) (opinion of Stewart, J.); see also Moran v. Burbine, 475 U.S. 412, 430 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986).

In a footnote to the above quoted passage, the Court stated in Harvey, 494 U.S. at 358 n. 4, 110 S.Ct. 1176 : The Court has recognized that the defendant has a right to counsel ... during a pretrial interrogation when the State attempts to elicit information directly from the accused. Brewer v. Williams, 430 U.S. 387, 401 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977); id., at 415[, 97 S.Ct. 1232 ] (Stevens, J., concurring). See also Coleman v. Alabama, 399 U.S. 1, 9 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970); Hamilton v. Alabama, 368 U.S. 52 , 82 S.Ct. 157 , 7 L.Ed.2d 114 (1961). The Court has also applied the Sixth Amendment’s protection to surreptitious government attempts to deliberately elicit information from the indicted defendant.

See Maine v. Moulton, 474 U.S. 159 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964). More recently, in Rothgery v. Gillespie County, 554 U.S. 191 ,-, 128 S.Ct. 2578, 2583 , 171 L.Ed.2d 366 (2008), the Court confirmed that the Sixth Amendment right to counsel attaches at the time of “the initiation of adversary judicial criminal proceedings.” The Court stated, id.: We have, for purposes of the right to counsel, pegged commencement to “ ‘the initiation of adversary judicial crim ⁴⁸³ inal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,’ ” United States v. Gouveia, 467 U.S. 180, 188 , 104 S.Ct. 2292 , 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972) (plurality opinion)). The rule is not “mere formalism,” but a recognition of the point at which “the government has committed itself to prosecute,” “the adverse positions of government and defendant have solidified,” and the accused “finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, supra, at 689 , 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 . In Moran v. Burbine, 475 U.S. 412, 428 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986), the Court noted: It is clear, of course, that, absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches.

United States v. Gouveia, 467 U.S. 180, 187 , 104 S.Ct. 2292 , 81 L.Ed.2d 146 (1984) ; Kirby v. Illinois, 406 U.S. 682, 689 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972) (opinion of Stewart, J.). See Brewer v. Williams, 430 U.S., at 400-401 , 97 S.Ct. 1232 . And we readily agree that once the right has attached, it follows that the police may not interfere with the efforts of a defendant’s attorney to act as a “ ‘medium’ between [the suspect] and the State” during the interrogation. Maine v. Moulton, 474 U.S. 159, 176 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985) ; see Brewer v. Williams, supra, at 401, n. 8, 97 S.Ct. 1232 .

In Maine v. Moulton, supra, 474 U.S. 159 , 106 S.Ct. 477 , the Court observed that, once an accused has invoked the Sixth Amendment right to assistance of counsel, the state has an obligation to honor the exercise of that right. The Court stated, 474 U.S. at 170-71 , 106 S.Ct. 477 (footnote omitted): ⁴⁸⁴ Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance.

We have on several occasions been called upon to clarify the scope of the State’s obligation in this regard, and have made clear that, at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel. ... As Justice Douglas succinctly put the point, “what use is a defendant’s right to effective counsel at every stage of a criminal case if, while he is held awaiting trial, he can be questioned in the absence of counsel until he confesses?” [(Quoting Spano v. New York, 360 U.S. 315, 326 , 79 S.Ct. 1202 , 3 L.Ed.2d 1265 (1959)).] In Michigan v. Jackson, 475 U.S. 625, 635 , 106 S.Ct. 1404 , 89 L.Ed.2d 631 (1986), overruled, Montejo v. Louisiana, 556 U.S.-, 129 S.Ct. 2079, 2091 , 173 L.Ed.2d 955 (2009), the Supreme Court held that, once an accused has indicated he wants the assistance of counsel, further questioning by the state or its agents is prohibited unless communications are subsequently initiated by the accused, and that any prereported waiver of this right by the accused is invalid. Under the rule expressed in Michigan v. Jackson, 475 U.S. at 635, 106 S.Ct. 1404 , the state could never establish a valid waiver of the Sixth Amendment right to counsel once it had been invoked. The Court held: “Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.” The Court stated, id. at 636 , 106 S.Ct. 1404 : ‘We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any ⁴⁸⁵ waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” The Court indicated in Patterson v. Illinois, 487 U.S. 285 , 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988), that the holding of Michigan v. Jackson — that “any waiver” of the Sixth Amendment right to counsel was “invalid” — was not etched in stone.

After being indicted, Patterson, of his own volition, asked police officers why another person had not also been indicted. After Patterson reviewed and signed a Miranda waiver form, he made incriminating statements. He was interviewed a second time by the prosecutor, who again reviewed the Miranda warnings and had Patterson sign another waiver form, after which Patterson made further incriminating statements. Patterson moved to suppress the statements on the ground that they were obtained in violation of his Sixth Amendment right to counsel.

The Supreme Court denied Patterson’s claim. Although the Court agreed that “[tjhere can be no doubt that petitioner had the right to have the assistance of counsel at his postindictment interviews with law enforcement authorities,” 487 U.S. at 290 , 108 S.Ct. 2389 , the Court noted that Patterson had never actually retained or accepted by appointment counsel to represent him. Id. at 290 n. 3, 108 S.Ct. 2389 . The Court distinguished Michigan v. Jackson, stating: “Our decision in Jackson , however, turned on the fact that the accused (ha[d] asked for the help of a lawyer’ in dealing with the police.” Id. at 291, 108 S.Ct. 2389 .

The Court explained, id.: Preserving the integrity of an accused’s choice to communicate with police only through counsel is the essence of Edwards and its progeny — not barring an accused from making an initial election 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. Having determined that the Sixth Amendment right to counsel could be waived after indictment, the Patterson Court ⁴⁸⁶ examined whether the purported waiver in the ease was knowing, intelligent, and voluntary. The Court stated: In the past, this Court has held that waiver of the Sixth Amendment right to counsel is valid only when it reflects “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, supra, [304 U.S.] at 464, 58 S.Ct. 1019 .

In other words, the accused must “kno[w] what he is doing” so that “his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279 , 63 S.Ct. 236 , 87 L.Ed. 268 (1942). In a case arising under the Fifth Amendment, we described this requirement as “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986). Whichever of these formulations is used, the key inquiry in a case such as this one must be: Was the accused, who waived his Sixth Amendment rights during postindictment questioning, made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel?

In this case, we are convinced that by admonishing petitioner with the Miranda warnings, respondent has met this burden and that petitioner’s waiver of his right to counsel at the questioning was valid. The Court emphasized in Patterson that the Miranda warnings provide an adequate basis for an accused to make a knowing and intelligent waiver of the Sixth Amendment right to counsel. The Court stated, id. at 299-300, 108 S.Ct. 2389 : So long as the accused is made aware of the “dangers and disadvantages of self-representation” during postindictment questioning, by use of the Miranda warnings, his waiver of his Sixth Amendment right to counsel at such questioning is “knowing and intelligent.” In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the Supreme Court had held that the Fifth Amendment right to have counsel present during custo- ⁴⁸⁷ dial interrogation had been violated when the police reinitiated interrogation after the suspect had requested counsel. Because the suspect had not been indicted, the Edwards Court did not address whether the outcome would have been the same under the Sixth Amendment. 451 U.S. at 480 -82 n. 7, 101 S.Ct. 1880 .

The Court stated in Edwards, 451 U.S. at 484-85 , 101 S.Ct. 1880 (footnote omitted): [Although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, [ 441 U.S. 369 (1979),] at 372-376[, 99 S.Ct. 1755 , 60 L.Ed.2d 286 ], the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. ... [I]t is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. Similarly, in Minnick v. Mississippi, 498 U.S. 146, 150 , 111 S.Ct. 486 , 112 L.Ed.2d 489 (1990), the Court emphasized that it was not “reaching any Sixth Amendment implications in the case,” but held that “the Fifth Amendment protection of Edwards is not terminated or suspended by consultation with counsel.” The Court explained in Minnick, 498 U.S. at 153 , 111 S.Ct. 486 : In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel ⁴⁸⁸ with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.

In Montejo v. Louisiana, 556 U.S.-, 129 S.Ct. 2079 , 173 L.Ed.2d 955 (2009), the Supreme Court expressly overruled the waiver language in Michigan v. Jackson, and held that the procedural safeguards announced in Fifth Amendment cases such as Edwards and Minnick were adequate to protect an accused’s Sixth Amendment right to counsel. Montejo was a suspect in connection with a murder. When he was arrested, he waived his Miranda rights, and ultimately admitted to shooting the victim. Montejo was brought before a judge and charged with murder.

The court ordered the Office of Indigent Defender to represent Montejo on the charges. After the appointment of counsel, but before Montejo had met with any attorney, the police asked him to accompany them to find the murder weapon. The police again advised him of his Miranda rights, and Montejo accompanied them on the excursion, during which he wrote a letter of apology to the victim’s wife. Montejo’s court-appointed counsel was upset that the police had talked with his client.

But Montejo’s letter was nevertheless admitted in evidence over defense counsel’s objection. The Supreme Court rejected Montejo’s contention that, under Michigan v. Jackson, there was a presumption that his waiver of counsel was invalid. 129 S.Ct. at 2091 . Instead, the Court held that, like most other rights, the Sixth Amendment right to assistance of counsel could be effectively waived— even by an accused already represented by counsel — “so long as the relinquishment of the right is voluntary, knowing, and intelligent. The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled.” Id., 129 S.Ct. at 2085 (citations omitted) (footnote omitted).

The Court noted that, generally, the Miranda warnings will suffice to provide the ⁴⁸⁹ accused with the information he needs to know in order for the waiver to be considered “a knowing and intelligent one.” Id. (citing Patterson, supra, 487 U.S. at 296 , 108 S.Ct. 2389 ). The Court held that the protections afforded by cases decided under the Fifth Amendment were sufficient to protect the accused’s Sixth Amendment right to counsel, stating, 129 S.Ct. at 2089 -90: [T]he Court has already taken substantial other, overlapping measures toward the same end. Under Miranda’s prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. 384 U.S., at 474 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 .

Under Edwa/rds’ prophylactic protection of the Miranda right, once such a defendant “has invoked his right to have counsel present,” interrogation must stop. 451 U.S., at 484 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 . And under Minnick’s prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, “whether or not the accused has consulted with his attorney.” [Minnick v. Mississippi,] 498 U.S. [146], at 153, 111 S.Ct. 486 , 112 L.Ed.2d 489 [(1990)]. These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings.

At