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# FILE·
IN CLERKS OFFICE 8JPREMECOU'flf!A'!'eOFW1'1111Nf'8llllllftllllaMOII DATE MAY 

### 08 2014

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IN THE SUPREME COURT OFTHE STATE OFWASHINGTON

STATE OF WASHINGTON, Respondent, NO. 88577-0



### v. ENBANC CESARE. 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 priorto custodial interrogation, a suspect mustbe informed ofhis right to remain silent and right to counsel and once the suspect invokes his right to counsel, no further interrogation about any offensebyany authorities maybeconducteduntil counsel is present orthe suspect initiates communication. These cases, however, involved onlyState v. Trochez-Jimenez (Cesar E.), 88577-0

domestic investigations regarding domestic crimes. At issue is whether the same rule applies when a suspectrequests an attorney during an interrogation conducted outsidethe United States by foreign authorities regarding a foreign crime. Both the trial court and CourtofAppeals saiditdoes not. We agree and affirm. FACTS AND PROCEDURALHISTORY This appeal arises from CesarTrochez-Jimenez's conviction following ajurytrial forthe second degree murder ofMario 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 shotBatizCastillo out ofself-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 andto '"retain and instruct counsel inprivate without delay."' Verbatim Report ofProceedings (VRP) (Aug. 11-16, Oct. 1, 2010) at 55-57 (quoting State's Pretrial Ex. 5). The officer also informedhimthathe couldhave the assistance of
alawyerwithout charge. !d. at 57. Trochez-Jimenez responded thathe wanted alawyer, though it is unclear from the record whetherhe was ever able to consult with one. Id. at 71-73. Trochez-Jimenezmaintains 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 ofhis whereabouts. Two detectives from the King County Sheriffs

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Office traveled to Vancouver, B.C., to speakwith Trochez-Jimenez. When they arrived at the Vancouverjail, Trochez-Jimenez was being questioned by Canadian authorities. Bythe time the King County detectives were able to speakto him, Trochez-Jimenez had been in custody for about six hours. The detectives were aware Trochez-Jimenez had been advised ofhis rightto counsel underthe Canadian charterbutwere unaware thathe had requested counsel be provided. They informed Trochez-Jimenez ofhis Miranda rights, with the help ofa Spanish-speaking Canadian police officer and using a standard King County form printed in Spanish, and likened his Miranda rights to those underthe 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 ifhe understood his right to an attorney, Trochez-Jimenez responded, '"Okay,"' signedthe written waiver form and agreed to talkto 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-Castillobecausehe 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 ofEdwards 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 suppressedbecause 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 beforeus.
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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 ofa differentjurisdiction than the United States." VRP (Oct. 19, 2010) at 97. The trial court additionally didnot credit Trochez-Jimenez's claimthathehadbelievedhis 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 ofhis Charter rights and asserted his right to counsel." !d. at 96-97. Division One ofthe Court ofAppeals affirmed, holding that an invocation ofaright to counsel made to foreign officials based on a foreign legal
source does not triggertheEdwards andRoberson rule to invalidate a subsequent waiver ofFifth Amendmentrights. 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 ofthe 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 ofthe 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
-4-State v. Trochez-Jimenez (Cesar E.), 88577-0

incrimination is also protectedunderthe 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 shouldtreatthem differentlyinthis case. InMiranda, "[t]he [United States Supreme] Court observedthat 'incommunicado interrogation' in an 'unfamiliar,' 'police-dominated atmosphere,' involves psychological pressures 'which workto 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 ofprophylactic 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 thathe has arightto remain silent, and arightto thepresence ofan attorney. Afterthe warnings are given, ifthe suspect indicates that he wishes to remain silent, the interrogation must cease. Similarly, ifthe suspect states that he wants an attorney, the interrogationmust ceaseuntil an attorneyis present."Id. at 103-04 (citations omitted).

potential threshold issue of whether Trochez-Jimenez, aforeign national, was similarly entitledtoMiranda warnings whenhe was interrogatedbyWashington detectives outside the United States because the State has assumed that "all the protections ofMiranda 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 Amendmentright to counsel is a trial right that is implicated when a statement is introduced in a United States court. UnitedStates v. Verdugo-Urquidez, 494 U.S. 259,264, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990).
-5-State v. Trochez-Jimenez (Cesar E.), 88577-0

Following Miranda, the Court remained concerned that police might "take advantage ofthe 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 courtheld that "when an accused has invokedhis 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 ofhis 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 thatjustas this rule applies across Americanjurisdictions, offenses, and agencies, it applies when apersoninvokes arightto counselunderaforeign 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 ofone's right to counsel underthe Fifth Amendment from arequest for counsel under foreign laws. SeeHollandv. Florida, 813 So. 2d 1007,

4 The Court of Appeals emphasized that there was no indication the Canadian officials were acting at the behest ofKing 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 ofhis right to counsel under Miranda created coercion by suggesting that his previous request for counsel was in vain. Suppl. Br. ofPet'rat 10-11.
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1009-10 (Fla. Dist. Ct. App. 2002) (holding arequest for counsel under Canadian law is not an invocation ofone'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); UnitedStates 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. SeeMontejo 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 ofWest 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 ofhis Sixth Amendment right to counsel as well as his Fifth Amendment Miranda right to counsel. Id. The Court disagreed, noting that allowing a Sixth Amendmentrequest for counsel to triggerMiranda protections would be contraryto the

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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. at797. 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 athttp://ww.tvw.org/. Regardless ofwhether Trochez-Jimenez was under custodial interrogation, the Fifth Amendment right to counsel does not attach when that custodial interrogation is void offederal or state involvement. Because a suspect's Miranda rights derive from the Fifth Amendment, they protect against instances ofpotential 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 aconcern ofpossible foreign prosecutionis beyondthe scope ofthe selfincrimination clause ofthe Fifth Amendment). Ittherefore 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 ofEdwards and subsequent cases. 

### In Vidal, German authorities

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apprehended Vidal on suspicion ofkidnapping and raping a German university student. 23 M.J. at 320-21. Afterbeing informed ofhis 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 ofVidal's prior request for an attorney. !d.. Vidal subsequentlywaivedhis rights and admittedhis involvementinthe 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 needto extendtheEdwardsprohibitionto encompass foreign interrogations wherethereasoning fortheEdwardsrule does not apply, particularlywhen "arequest 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 investigatoruntil 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 notheldto the strictures ofour 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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nationals in foreign custody, but their broader reasoning is on point-protecting the sanctity ofFifth Amendment rights does not require treating a suspect's invocation of foreign rights as aFifthAmendmentinvocationthattriggersEdwards' protection. Not only is there no case law supporting the application ofthe Edwards rule to statements made during interrogations conducted outside the United States by foreign authorities without the involvement ofUnited 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, andunder others notuntil afterthe investigative stage,In re Terrorist Bombings ofUS. 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 aright to have counsel present during questioning in a foreign jurisdiction and, ifthere indeed is a right, whether the suspecthas beeninformed ofthis right andwhetherthe suspecthas invoked it. Onlythen might the prophylactic concerns ofEdwards be implicated. Moreover, ifcounsel has been requested, it is not clear whether authorities must giveMiranda advisements since
none have been provided or are insteadprohibitedfrom doing so at the risk ofcoercing the suspect. The Edwards rule was meant to reinforceMiranda, 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 ofhis or herMiranda

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rights. That assumption simplydoes not applyto foreign authorities operating outsidethe United States. Forthese reasons, we decline to extendEdwards to foreign investigations byforeign authorities investigating foreign offenses. CONCLUSION We holdthat a suspect's invocation ofarightto counsel under aforeign charter, in
a foreign investigation conducted solely by foreign authorities without United States involvement, does not triggerthe prophylactic protections ofEdwards. The lower court correctlyheld thatKing Countydetectives didnot violateEdwards whenthey questioned Trochez-Jimenez. We affirm.

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WE CONCUR:

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