Thank You For Submiting Feedback!
The concept of a knowing and voluntary waiver of U.S. Const. amend. VI rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government. In that setting, the defendant, being unaware that the informant was a Government agent expressly commissioned to secure evidence, cannot be held to have waived his right to the assistance of counsel.
Appellant Robert Rubalcado arrested pursuant to an Ector County complaint, made bail and was released from incarceration. Afterwards, at the behest of Midland County law enforcement, the complaining witness in the Ector County case contacted appellant and elicited incriminating statements from him. During the complaining witness’ testimony in its case-in-chief, the State offered the three recorded phone conversations. Defense counsel objected that the recordings violated the right to counsel. Defense counsel stated that the officer was informed that the appellant had an attorney. Defense counsel also stated that, at the time of the recordings, appellant had been charged by complaint and had made bail. Defense counsel also contended that the complaining witness acted as an agent of law enforcement when she made the calls. The prosecutor responded that the phone calls were orchestrated by the Midland Police Department, not the Odessa Police Department, and that the Midland Police Department was not aware of counsel at that time. The trial judge overruled appellant’s objection and the recordings were played to the jury. On appeal, the appellant urged his right-to-counsel claim on appeal, which the court of appeals rejected.
Should the court have excluded the incriminating statements made by appellant because they were obtained in violation of the appellant’s constitutional rights?
The court held that the appellant’s right to counsel under U.S. Const. amend. VI was violated when his incriminating statements obtained from the complaining witness with regard to a subsequent case were later used as primary evidence of guilt in the current case. His U.S. Const. amend. VI right to counsel with respect to the current charges had attached before the recorded conversations took place. Appellant's right to counsel had attached with respect to the recordings insofar as they were relevant to the current prosecutions; the complaining witness was a government agent under the facts of the case; deliberate elicitation was shown. The court held that the police encouraged the complaining witness to contact appellant for the purpose of eliciting a confession and they provided recording equipment to her to memorialize any incriminating statements. Appellant did not waive his right to counsel. Accordingly, the judgment of the appellate court was reversed.