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Name: People v. Viray
Case #: H026515
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/14/2005

A complaint was filed charging appellant with committing elder abuse. On the day of her arraignment, the prosecutor and an investigator interrogated her. She had no counsel present and was not advised that she had a right to counsel. Her statements were subsequently admitted at her court trial without objection. On appeal, she argued that the interrogation was a violation of Massiah v. United States, and that the statements should have been excluded. The appellate court agreed that there had been a violation of appellant’s right to counsel, but that the error was not reversible because of the failure to raise it below. Although the interrogation was prosecutorial misconduct, it was not egregious enough to justify a dismissal of the charges. Nor can the failure to object be considered ineffective assistance of counsel because it cannot be concluded from the record that counsel lacked a tactical reason for failing to object.