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             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 Batiz-
Castillo 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 self-

       2
         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

                                            -4-
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. Id. 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 self-
incrimination 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


                                            -8-
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). Trochez-
Jimenez' s situation is not on all fours with these cases insofar as they involve American


                                             -9-
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


                                            -10-
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.




                                             -11-
State v. Trochez-Jimenez (Cesar E.), 88577-0




WE CONCUR:




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