McDonald, Amanda

In 2007, McDonald was involved in a collision in which someone died.  She was arrested for intoxication manslaughter and failure to stop and render aid.  These charged were no-billed by two grand juries and the case was dismissed in 2008.  In 2018, one of the detectives involved in the original investigation went to McDonald’s house, accompanied by another detective, to interview her about the incident.  McDonald said she retained a lawyer at the time of the initial investigation and that she did not have to speak to them without her lawyer, but she ultimately invited the other detective in and spoke with him at length about the incident.  McDonald was later indicted for manslaughter and failure to render aid after an accident resulting in death.  McDonald moved to suppress her interview because her Sixth Amendment right to counsel was violated.  The trial court did so.  It found that McDonald was represented by counsel in 2018 and the officers knew it.

The court of appeals affirmed.  It rejected the argument that, for Sixth Amendment purposes, her right to counsel ceased when the cases were dismissed in 2008.  It relied on State v. Frye, 897 S.W.2d 324 (Tex. Crim. App. 1995), in which the Court of Criminal Appeals held that questioning of a represented suspect a few months after a misdemeanor charge was dismissed to pursue a felony investigation on the same facts violated the Sixth Amendment.

The State argues that the right to counsel did not apply because McDonald was not an “accused” as the plain language of the Sixth Amendment requires.  See U.S. CONST. amend 6 (“[T]he accused shall enjoy the right to . . . the assistance of counsel for his defense.”).  An officer’s questions cannot make a suspect an “accused” because that happens only when formal charges are brought.  For that reason, it does not matter whether McDonald maintained an attorney-client relationship.  The State distinguished Frye because its holding focused on Frye’s misdemeanor being dismissed explicitly for the purpose of pursuing a larger charge that included the same allegations, and that indictment followed months later—“what matters is timing and purpose of the dismissal.”  Finally, the State points out that every other court that has examined similar facts has concluded that the only basis for finding a Sixth Amendment violation in the absence of pending formal charges is when the purpose of dismissal was to circumvent the right to counsel.