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FILE· 

IN CLERKS OFFICE 

8JPREME COU'fl f!A'!'e OF W1'1111Nf'8 llllllftllllaMOII 

DATE MAY 0 8 2014 

-YJ4~9 

This opi"nlOn.wasflled forrecord 

at '6:oq q.-r> on Ma"f R. ?.Qr~.-1 

\~~~M Supreme Court Clerk 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Respondent, NO. 88577-0 

v. 

ENBANC 

CESAR E. TROCHEZ-JIMENEZ, 

Petitioner. Filed MAY 0 8 2014 

STEPHENS, I.-Petitioner Cesar Trochez-Jimenez appeals his conviction for 

murder in the second degree, arguing the statements he made during custodial 

interrogation should have been suppressed because they were taken in violation of 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Edwards v. 

Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981); and Arizona v. 

Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988). Together these 

cases hold that prior to custodial interrogation, a suspect must be informed of his right to 

remain silent and right to counsel and once the suspect invokes his right to counsel, no 

further interrogation about any offense by any authorities may be conducted until counsel 

is present or the suspect initiates communication. These cases, however, involved only 

 	 
	 
   
		

		

State v. Trochez-Jimenez (Cesar E.), 88577-0 

domestic investigations regarding domestic crimes. At issue is whether the same rule 

applies when a suspect requests an attorney during an interrogation conducted outside the 

United States by foreign authorities regarding a foreign crime. Both the trial court and 

Court of Appeals said it does not. We agree and affirm. 

FACTS AND PROCEDURAL HISTORY 

This appeal arises from Cesar Trochez-Jimenez' s conviction following a jury trial 

for the second degree murder of Mario Batiz-Castillo. Trochez-Jimenez does not dispute 

that he shot Batiz-Castillo, who at the time was having an affair with Trochez-Jimenez's 

then girl friend, now wife, Lesli Batiz. Rather, Trochez-Jimenez maintains he shot BatizCastillo out of self-defense. 

After shooting Batiz-Castillo, Trochez-Jimenez fled to Canada, where he was 

apprehended by Canadian authorities for illegal entry into Canada. The arresting officer 

informed Trochez-Jimenez of his right, under the Canadian Charter of Rights and 

Freedoms, to remain silent and to '"retain and instruct counsel in private without delay."' 

Verbatim Report of Proceedings (VRP) (Aug. 11-16, Oct. 1, 2010) at 55-57 (quoting 

State's Pretrial Ex. 5). The officer also informed him that he could have the assistance of 

a lawyer without charge. !d. at 57. Trochez-Jimenez responded that he wanted a lawyer, 

though it is unclear from the record whether he was ever able to consult with one. Id. at 

71-73. Trochez-Jimenez maintains he was not. 

During their investigation, Canadian authorities discovered that Trochez-Jimenez 

was a suspect in a homicide in Seattle, Washington, and notified the King County 

Sheriffs Office of his whereabouts. Two detectives from the King County Sheriffs 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

Office traveled to Vancouver, B.C., to speak with Trochez-Jimenez. When they arrived 

at the Vancouver jail, Trochez-Jimenez was being questioned by Canadian authorities. 

By the time the King County detectives were able to speak to him, Trochez-Jimenez had 

been in custody for about six hours. The detectives were aware Trochez-Jimenez had 

been advised of his right to counsel under the Canadian charter but were unaware that he 

had requested counsel be provided. They informed Trochez-Jimenez of his Miranda 

rights, with the help of a Spanish-speaking Canadian police officer and using a standard 

King County form printed in Spanish, and likened his Miranda rights to those under the 

Canadian charter. VRP (Aug. 10, 2010) at 94-95; VRP (Aug. 11-16, Oct. 1, 2010) at 11-

19, 33-34, 81; State's Pretrial Ex. 3; State's Ex. 43, at 2-4. When asked if he understood 

his right to an attorney, Trochez-Jimenez responded, '"Okay,"' signed the written waiver 

form and agreed to talk to the detectives. VRP (Aug. 11-16, Oct. 1, 2010) at 90 (quoting 

State's Ex. 43, at 3). In his statement to the detectives, Trochez-Jimenez admitted 

shooting Batiz-Castillo because he was "furious." State's Ex. 43, at 12-15,29. 

Before trial, Trochez-Jimenez moved to suppress his statement, claiming it was 

taken pursuant to a custodial interrogation after he had invoked his right to counsel, in 

violation of Edwards and its progeny. 1 The trial court rejected this argument. The court 

found that Trochez-Jimenez' s assertion of his right to counsel in the Canadian 

1 Trochez-Jimenez also argued that his statement should be suppressed because his 

childhood experiences and limited proficiency in Spanish prevented him from fully 

comprehending his rights, and, therefore, any waiver of his rights was not knowingly, 

voluntarily and intelligently made. Clerk's Papers at 64-66. The trial court did not find 

Trochez-Jimenez to be credible, concluding he "clearly understood" his .Miranda rights. 

CP at 82. Trochez-Jimenez did not appeal this conclusion; therefore, this issue is not 

before us. 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

investigation was not an assertion of his Fifth Amendment2 right to counsel under 

Miranda: "Nothing about the Miranda decision or its progeny requires suppression, 

because the defendant asserted a different right under a different document to an officer 

of a different jurisdiction than the United States." VRP (Oct. 19, 2010) at 97. The trial 

court additionally did not credit Trochez-Jimenez' s claim that he had believed his request 

for counsel to the Canadian authorities applied to the King County investigation when he 

had been told specifically that he was under arrest for immigration violations, and it was 

"with regard to those issues that he was advised of his Charter rights and asserted his 

right to counsel." !d. at 96-97. Division One of the Court of Appeals affirmed, holding 

that an invocation of a right to counsel made to foreign officials based on a foreign legal 

source does not trigger the Edwards and Roberson rule to invalidate a subsequent waiver 

of Fifth Amendment rights. State v. Trochez-Jimenez, 173 Wn. App. 423, 434, 294 P.3d 

783 (2013). We granted review. State v. Trochez-Jimenez, 177 Wn.2d 1019, 304 P.3d 

115 (2013). 

ANALYSIS 

The Fifth Amendment, which applies to the states by virtue of the Fourteenth 

Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), 

guarantees that " [ n ]o person ... shall be compelled in any criminal case to be a witness 

against himself" U.S. CONST. amend. V.3 The right to be free from compelled self2 U.S. CONST. amend. V. 

3 The Ninth Circuit has held that "the constitutional guarantees of the fifth 

amendment as well as other constitutional safeguards secure United States citizens against 

acts of agents of the United States whether acting at home or abroad." United States v. 

Covington, 783 F.2d 1052, 1056 (9th Cir. 1985) (emphasis added). We do not address the 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

incrimination is also protected under the Washington State Constitution. CONST. art. I,§ 

9. This court has interpreted the two provisions coextensively, State v. Easter, 130 

Wn.2d 228, 235, 922 P.2d 1285 (1996), and Trochez-Jimenez has not argued that we 

should treat them differently in this case. 

In Miranda, "[t]he [United States Supreme] Court observed that 'incommunicado 

interrogation' in an 'unfamiliar,' 'police-dominated atmosphere,' involves psychological 

pressures 'which work to undermine the individual's will to resist and to compel him to 

speak where he would not otherwise do so freely."' Maryland v. Shatzer, 559 U.S. 98, 

103, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010) (citation omitted) (quoting Miranda, 

384 U.S. at 456-57, 467). It therefore "adopted a set of prophylactic measures to protect 

a suspect's Fifth Amendment right from the 'inherently compelling pressures' of 

custodial interrogation." Id. (quoting Miranda, 384 U.S. at 467). "To counteract the 

coercive pressure, Miranda announced that police officers must warn a suspect prior to 

questioning that he has a right to remain silent, and a right to the presence of an attorney. 

After the warnings are given, if the suspect indicates that he wishes to remain silent, the 

interrogation must cease. Similarly, if the suspect states that he wants an attorney, the 

interrogation must cease until an attorney is present." Id. at 103-04 (citations omitted). 

potential threshold issue of whether Trochez-Jimenez, a foreign national, was similarly 

entitled to Miranda warnings when he was interrogated by Washington detectives outside the 

United States because the State has assumed that "all the protections of Miranda applied" in 

this case. State's Suppl. Br. at 10; see Trochez-Jimenez, 173 Wn. App. at 429-30 

(concluding this issue is not in dispute). We note, however, that the Fifth Amendment right 

to counsel is a trial right that is implicated when a statement is introduced in a United States 

court. United States v. Verdugo-Urquidez, 494 U.S. 259,264, 110 S. Ct. 1056, 108 L. Ed. 2d 

222 (1990). 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

Following Miranda, the Court remained concerned that police might "take 

advantage of the mounting coercive pressures of 'prolonged police custody,' Roberson, 

486 U. S., at 686, by repeatedly attempting to question a suspect who previously 

requested counsel until the suspect is 'badgered into submission,' id., at 690 (KENNEDY, 

J., dissenting)." Shatzer, 559 U.S. at 105. To foreclose the potential for abuse, the 

Edwards court held 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. [He] 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." 451 U.S. 

at 484-85. The Court subsequently clarified that the Edwards rule is neither offense 

specific nor agency specific. Roberson, 486 U.S. at 687-88. 

Trochez-Jimenez argues that just as this rule applies across American jurisdictions, 

offenses, and agencies, it applies when a person invokes a right to counsel under a foreign 

charter to foreign officials even in the absence of United States involvement in that 

investigation.4 No court has so held. Several courts, however, have held to the contrary 

and declined to infer an invocation of one's right to counsel under the Fifth Amendment 

from a request for counsel under foreign laws. See Holland v. Florida, 813 So. 2d 1007, 

4 The Court of Appeals emphasized that there was no indication the Canadian 

officials were acting at the behest of King County detectives or in any way working in 

concert with them. Trochez-Jimenez, 173 Wn. App. at 434. Trochez-Jimenez concedes 

this point, arguing that the relevant inquiry is whether soliciting a waiver of his right to 

counsel under Miranda created coercion by suggesting that his previous request for 

counsel was in vain. Suppl. Br. ofPet'r at 10-11. 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

1009-10 (Fla. Dist. Ct. App. 2002) (holding a request for counsel under Canadian law is 

not an invocation of one's Fifth Amendment right to counsel under Miranda); United 

States v. Dock, 40 M.J. 112, 117-19 (C.M.A. 1994) (holding Edwards is not applicable 

when a suspect invokes his right to counsel under German law); United States v. 

Coleman, 26 M.J. 451, 453 (C.M.A. 1988) (same); United States v. Vidal, 23 M.J. 319, 

320-23 (C.M.A.) (same), cert. denied, 481 U.S. 1052 (1987). 

These cases are consistent with the settled principle that the Fifth Amendment 

right to counsel cannot be invoked anticipatorily before the Fifth Amendment attaches. 

See Montejo v. Louisiana, 556 U.S. 778,797, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009); 

McNeil v. Wisconsin, 501 U.S. 171, 182 n.3, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991). 

In McNeil, the Milwaukee County Sheriffs Office suspected McNeil of having 

committed two separate crimes in the cities of West Allis and Caledonia. I d. at 173. 

McNeil was arrested, charged, and appointed counsel with regard to the West Allis 

crime. Id. While he was in jail pending trial, officers interrogated him about the 

Caledonia crime. Id. at 174. McNeil waived his Miranda rights, admitted his 

involvement in the crime, and provided a written statement recounting the events. Id. 

Although he never requested an attorney during any interrogation prior to or after his 

arrest, he sought to suppress his statements under Edwards and Roberson, contending 

that his courtroom appearance with an attorney for the West Allis offense constituted an 

invocation of his Sixth Amendment right to counsel as well as his Fifth Amendment 

Miranda right to counsel. Id. The Court disagreed, noting that allowing a Sixth 

Amendment request for counsel to trigger Miranda protections would be contrary to the 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

fact that "[w]e have ... never held that a person can invoke his Miranda rights 

anticipatorily, in a context other than 'custodial interrogation,"' especially when "[m]ost 

rights must be asserted when the government seeks to take the action they protect 

against." Id. at 182 n.3; seeMontfijo, 556 U.S. at 797. 

Trochez-Jimenez argues he did not anticipatorily invoke his Miranda rights 

because he was in custody at the time he requested counsel, albeit by Canadian 

authorities. Wash. Supreme Court oral argument, State v. Trochez-Jimenez, No. 88577-0 

(Jan. 16, 2014), at 9 min., 43 sec. through 11 min., 19 sec., audio recording by TVW, 

Washington State's Public Affairs Network, available at http://ww.tvw.org/. Regardless 

of whether Trochez-Jimenez was under custodial interrogation, the Fifth Amendment 

right to counsel does not attach when that custodial interrogation is void of federal or 

state involvement. Because a suspect's Miranda rights derive from the Fifth 

Amendment, they protect against instances of potential self-incrimination. No potential 

for self-incrimination, however, exists with a foreign prosecution regarding a foreign 

crime. United States v. Balsys, 524 U.S. 666, 669, 118 S. Ct. 2218, 141 L. Ed. 2d 575 

( 1998) (holding a concern of possible foreign prosecution is beyond the scope of the selfincrimination clause of the Fifth Amendment). It therefore follows that for the right to 

attach, the custodial interrogation must be by federal or state governments, not foreign 

authorities. 

Other courts have also declined to rule that a request for counsel to foreign 

authorities triggers the Edwards protections because such a rule is not compelled by the 

prophylactic purposes of Edwards and subsequent cases. In Vidal, German authorities 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

apprehended Vidal on suspicion of kidnapping and raping a German university student. 

23 M.J. at 320-21. After being informed of his rights under German law, Vidal indicated 

that he wanted counsel and did not consent to being questioned. Id. at 321. Authorities 

for the United States military arrived later and administered Miranda warnings. !d. 

They, however, were not aware of Vidal's prior request for an attorney. !d.. Vidal 

subsequently waived his rights and admitted his involvement in the crimes. !d. at 321-22. 

The court refused to impute Vidal's request for counsel onto American authorities who 

had no involvement in the German investigation. Id. at 323. The court explained that 

there was no need to extend the Edwards prohibition to encompass foreign interrogations 

where the reasoning for the Edwards rule does not apply, particularly when "a request for 

counsel made in connection with a foreign investigation may result only from the 

American suspect's unfamiliarity with the foreign legal system and does not necessarily 

mean that the suspect is unwilling to talk to an American investigator until he has been 

provided counsel." !d.; accord United States v. Hinojosa, 33 M.J. 353, 355 (C.M.A. 

1991) (reasoning that "appellant's request for an attorney-made to Dutch police during 

a Dutch investigation-may well have signaled only his discomfort in dealing with a 

foreign law enforcement system; it does not logically follow that he necessarily had a 

similar discomfort when interviewed by American investigators"). The court further 

noted that there is no reason to impute such a request onto American authorities when 

foreign officials are not held to the strictures of our constitutional laws. Vidal, 23 M.J. at 

323; accord United States v. Covington, 783 F.2d 1052, 1056 (9th Cir. 1985). TrochezJimenez' s situation is not on all fours with these cases insofar as they involve American 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

nationals in foreign custody, but their broader reasoning is on point-protecting the 

sanctity of Fifth Amendment rights does not require treating a suspect's invocation of 

foreign rights as a Fifth Amendment invocation that triggers Edwards' protection. 

Not only is there no case law supporting the application of the Edwards rule to 

statements made during interrogations conducted outside the United States by foreign 

authorities without the involvement of United States authorities, there is no good policy 

reason to expand Edwards to statements taken after such interrogations. Simply stated, 

charters differ. Under some laws the right to counsel attaches at custody, Holland, 813 

So. 2d at 1010 n.2, and under others not until after the investigative stage, In re Terrorist 

Bombings of US. Embassies in E. Afr., 552 F.3d 177, 186 (2d Cir. 2008). "The merit of 

the Edwards decision lies in the clarity of its command and the certainty of its 

application." Minnick v. Mississippi, 498 U.S. 146, 151, 111 S. Ct. 486, 112 L. Ed. 2d 

489 (1990). Clarity and certainty are difficult to achieve when United States' officials 

must refer to foreign law to decide whether a suspect has a right to have counsel present 

during questioning in a foreign jurisdiction and, if there indeed is a right, whether the 

suspect has been informed of this right and whether the suspect has invoked it. Only then 

might the prophylactic concerns of Edwards be implicated. Moreover, if counsel has 

been requested, it is not clear whether authorities must give Miranda advisements since 

none have been provided or are instead prohibited from doing so at the risk of coercing 

the suspect. The Edwards rule was meant to reinforce Miranda, not thwart it. Edwards 

rests on the assumption of a seamless system under which all agencies are operating 

under similar rules that require a suspect be at least once advised of his or her Miranda 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

rights. That assumption simply does not apply to foreign authorities operating outside the 

United States. For these reasons, we decline to extend Edwards to foreign investigations 

by foreign authorities investigating foreign offenses. 

CONCLUSION 

We hold that a suspect's invocation of a right to counsel under a foreign charter, in 

a foreign investigation conducted solely by foreign authorities without United States 

involvement, does not trigger the prophylactic protections of Edwards. The lower court 

correctly held that King County detectives did not violate Edwards when they questioned 

Trochez-Jimenez. We affirm. 

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State v. Trochez-Jimenez (Cesar E.), 88577-0 

WE CONCUR: 

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