No. 28023-0-IIThe Court of Appeals of Washington, Division Two.
Filed: July 29, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County Docket No: 01-1-00448-9 Judgment or order under review Date filed: 10/29/2001
Counsel for Appellant(s), Manek R. Mistry, Backlund Mistry, 331 NW Park St, Chehalis, WA 98532-2024.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
ARMSTRONG, J.
Matthew Reisman pleaded guilty to multiple offenses arising from two burglaries and agreed to submit to a polygraph examination whenever the prosecutor asked. After Reisman failed the polygraph, the trial judge ruled that the State was not bound by its agreement and sentenced Reisman outside the terms of the plea agreement. On appeal, Reisman contends that the State improperly subjected him to the polygraph without first notifying his attorney. We agree and, accordingly, vacate the sentence and remand for further proceedings.
FACTS
Matthew Reisman pleaded guilty to ten crimes arising out of two residential burglaries. As part of his plea agreement, he agreed to ‘[s]ubmit to and successfully pass a polygraph examination at any time upon request of the Lewis County Prosecutor’s Office.’ Clerk’s Papers (CP) at 35. In return, the prosecutor agreed to recommend that the court allow him to withdraw his plea to six of the crimes. The prosecutor also agreed to recommend that he be sentenced on only four of the counts for a total 42-month sentence. Reisman understood that failure to perform any of the obligations truthfully and honestly would relieve the State from its promises under the agreement. After his attorney reviewed and signed the agreement, Reisman signed it.
The State contacted Reisman about and conducted the polygraph examination without notifying Reisman’s attorney. Reisman failed the polygraph examination.
When the test administrator told Reisman that the test showed that he had lied, Reisman admitted that he had acted as more than just a look-out as he had told police. The State sought to admit the test results at sentencing. Defense counsel objected, arguing that the State should not have directly contacted Reisman and should have notified defense counsel that it was conducting the polygraph. Defense counsel argued that Reisman had not waived his right to counsel and explained that he would have talked with Reisman to prepare him for the test if he had he known about it.
The court disagreed, ruling that Reisman waived his right to have counsel present by agreeing to submit to the polygraph. The court then found that Reisman breached the plea agreement by failing the polygraph. Thus, the court ruled that the State was not bound by the plea agreement and sentenced Reisman to 137 months.
ANALYSIS
The Fifth Amendment provides that no person `shall be compelled in any criminal case to be a witness against himself.’ U.S. Const., amend. V.
The purpose of the right is . . . `to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.’ State v. Easter, 130 Wn.2d 228, 241, 922 P.2d 1285 (1996) (quoting Doe v. United States, 487 U.S. 201, 213, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988)).
State v. Sweet, 138 Wn.2d 466, 480, 980 P.2d 1223 (1999).
Whether this privilege is available depends on the nature of the statement or admission and the exposure it invites, not the type of proceeding in which its protection is invoked. State v. Post, 118 Wn.2d 596, 604, 826 P.2d 172, 837 P.2d 599 (1992). These Fifth Amendment guarantees apply at the sentencing phase. Post, 118 Wn.2d at 605. Consequently, a `defendant who has pleaded guilty, but awaits sentencing, is allowed to invoke the Fifth Amendment privilege against self-incrimination in order to prevent the possible enhancement of his sentence.’ State v. Tinkham, 74 Wn. App. 102, 108, 871 P.2d 1127 (1994).
A defendant can knowingly and voluntarily waive his Fifth Amendment rights. “An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.” State v. Rupe, 101 Wn.2d 664, 678, 683 P.2d 571 (1984) (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). Waiver is voluntary if “it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” State v. Corn, 95 Wn. App. 41, 57-58, 975 P.2d 520 (1999) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). It must also be made with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Corn, 95 Wn. App. at 58
(quoting Moran, 475 U.S. at 421).
The Sixth Amendment guarantees criminal defendants the right to the assistance of counsel. Its purpose is to ensure that the accused does not suffer an adverse judgment or lose the benefit of procedural protections because of the ignorance of the law. United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740 (3d Cir. 1979). A defendant is guaranteed that he need not stand alone against the State at any `critical stage’ of the proceedings. United States v. Wade, 388 U.S. 218, 224-27, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967).
Tinkham, 74 Wn. App. at 109 (court-ordered psychological examination to determine future dangerousness invokes right to assistance of counsel).
Here, Reisman specifically waived some of his rights, for example his speedy trial right, in the plea agreement. And he agreed to take a polygraph examination any time the prosecutor asked. But he did not specifically waive his right to counsel in the agreement. And the record contains no evidence that the State informed him before administering the polygraph that he had the right to have counsel present. The State concedes that it did not even inform counsel that it was going to administer the exam. Nothing in the record shows that Reisman voluntarily, intelligently, and knowingly waived his right, either in writing or by implication.
State v. Jones, 19 Wn. App. 850, 578 P.2d 71 (1978), is instructive. Jones voluntarily submitted to a polygraph examination after waiving his constitutional right to an attorney. But while his polygraph was taking place, an attorney called the police department, told them Jones’s mother had retained him, and asked that Jones not be interrogated unless he was present. The police explained that the polygraph had already begun and that they would not end it. At the end of the test, the examiner told Jones that he had failed the examination, and another police officer asked if there was anything he wanted to tell the police. Jones replied that there was not but that he thought he would be convicted. Jones, 19 Wn. App. at 851-52. Jones argued that this statement should not have been admitted.
The court held that when `custodial interrogation is conducted in planned absence of counsel without notifying the defendant of counsel’s availability and desire to be present during questioning, a defendant has been denied effective assistance of counsel.’ Jones, 19 Wn. App. at 852. Accordingly, the police should have told Jones that counsel was available and wanted to talk to him. Jones, 19 Wn. App. at 853-54. Important to the court’s holding was the fact that Jones was questioned while in custody. And custodial interrogation `imposes a heavy burden on the State to show that a defendant’s waiver of his right to counsel was `an intentional relinquishment or abandonment of a known right or privilege.” Jones, 19 Wn. App. at 853 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). The court concluded that Jones had not knowingly and intelligently waived his Miranda[1] rights because he did not know that his lawyer wanted to contact him. Jones, 19 Wn. App. at 853. `When counsel expressly requests that his client not be questioned until counsel has conferred with him and police deliberately withhold this information, a defendant’s waiver has not been knowingly and intelligently made.’ Jones, 19 Wn. App. at 853.
Although here the court considered the polygraph results, rather than statements Reisman made after the polygraph, Jones is still helpful. The polygraph examination was an interrogation; the test examiner’s questions could provoke an incriminating response. Post, 118 Wn.2d at 606. The examiner asked Reisman whether he lied to the police about his co-defendant’s role in the burglaries. Reisman answered deceptively. When the examiner pointed this out to him, Reisman admitted that he had minimized his part in the burglaries when talking to the police. Accordingly, we conclude that the State has not met its `heavy burden’ of showing that Reisman intentionally relinquished his right to talk with his attorney before a custodial interrogation. Jones, 19 Wn. App. at 853.
Moreover, the State administered the test at a critical stage in the proceeding — after Reisman’s plea but before sentencing — and Reisman had a Sixth Amendment right to counsel at the time. Tinkham, 74 Wn. App. at 109.
Because the examination had drastic sentencing consequences for Reisman, the State had a duty, before it subjected Reisman to custodial interrogation, to ensure that he knew of his right to counsel and that he had the opportunity to invoke the right. Maine v. Moulton, 474 U.S. 159, 171, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).[2]
Because the trial court erred when it considered the polygraph results as evidence that Reisman breached the plea agreement, we vacate the sentence and remand for further proceedings. Reisman may elect specific performance of the plea bargain, in which case the State is entitled to conduct a new polygraph, or he may withdraw his pleas on all ten counts.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, C.J. and MORGAN, J., concur.
(1966).