Legal Updates Fall 2018
Confession was suppressed when request to stop answering questions was ignored (value of the video in supporting defendant’s claims)
In US v. Coriz (September 2018) the US District Court, D. New Mexico, ruled that the defendant’s confession should have been suppressed because the investigator “failed to scrupulously honor” the defendant’s “unequivocal right to remain silent.” From the court’s opinion:
At the time of the interview in question, Tyrone Coriz was a 45-year old man who completed the 11th grade and was previously a tribal official. As part of the investigation into allegations that the defendant committed a sexual assault, he agreed to take a polygraph test. Coriz signed a consent form to take the polygraph examination and signed a Miranda waiver form. The defendant was advised that he failed the test and was interrogated.
During the interrogation Coriz said that he did not want to talk anymore. The investigator asked him why [the victim] “would make it up.” She continued to interrogate Coriz. He later stated, “I don't want to argue no more. If they really want me that bad and they want to throw away the key at me, fine.” The investigator responded, “Are you telling me that when James or the BIA or whoever” … when Coriz interrupted her and said: “I have nothing more to say.” The investigator replied, “OK.” Coriz continued talking, saying, that he knows in his heart he is telling the truth. The investigator stated, “You realize it’s not going away. I mean, you get that, right.” Coriz said that is fine, if they want him gone that bad, my own family, and he continued to talk. The questioning resumed with the investigator responding and asking more questions. Later the defendant said, “I don’t need to say anymore.”
Defendant asserts that he unambiguously invoked his right to remain silent more than once. The Government argues that the video is inaudible and he did not clearly invoke his rights. Despite that the transcript states “inaudible” at virtually all the crucial moments in the interview, the Court finds that the video and enhanced audio evidence is audible at the critical portions upon careful review. Defendant invoked his right to silence three separate times: first, at 12:40 to 12:46 running time, Coriz says that he does not want to talk anymore; second, at 13:58 to 14:01, Coriz said, “I have nothing more to say;” and third, at 18:46 Coriz said, “I don't need to say anymore.” Coriz’s statements are clear and unequivocal.
The Government suggests that the investigator may not have heard Coriz, but the video provides strong evidence to the contrary…
From the entire context, the Court concludes Defendant unambiguously invoked his right to remain silent. “Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease.”…. An “accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked.”
The Court also found it problematic that the investigator repeatedly urged Coriz to admit what he had done so that he could get psychological counseling and/or therapy…. At one point, she suggested that he should take responsibility, get help, and try to stay out of prison, if he can. She later said that no one was trying to put him in prison…. Subsequently, she explained, “We address the problem. We get them help to stay with their family.” Although Sullivan’s statements may be too vague to constitute a promise of leniency, her statements emphasized getting him counseling or therapy if he confessed, and minimized the prospect of prison.
It is the combination of evidence of psychological pressure that crosses the threshold to coercion: misrepresenting that Coriz failed the polygraph and that it was not even close [when the results were actually inconclusive]; repeatedly suggesting that he could get help and therapy, rather than prison if he confessed; suggesting agents would tell his community he failed the polygraph test if he did not confess; and most significantly, not ending the interview when Coriz said he did not want to say anything more…. For all the foregoing reasons, the Court finds that the Government has not met its burden of persuasion to show that Coriz’s confession was made voluntarily.
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Confession found inadmissible when investigators did not honor the defendant’s request for an attorney
In US v. Davis (September 2018) the US District Court, D. Maryland, Southern Division, ruled that the defendant’s incriminating statements should have been suppressed because the investigators did not honor his request for a lawyer. From the Court’s opinion:
Here, Defendant’s invocation of his right to an attorney could hardly have been more clear. When the investigator reaches the portion of the form that includes a waiver of the right to an attorney, Defendant immediately responds, saying, “If I'm going to answer questions, I'm going to need a lawyer here.” Seconds later, he restates his request: “I want to talk to you, but I just need my lawyer.” And after an investigator asks, “here’s what you're telling us—you do want your lawyer?” Defendant once more affirms his request: “I want to talk, yeah. But I need my lawyer present.” Absent is any language suggesting Defendant is uncertain of what he wants, or needs more information before making his decision. Defendant has not asked a question about the wisdom of his request, nor does he have procedural questions about the availability of a lawyer. Three times, he explains his “need” for a lawyer. Any of these three statements individually would suffice to establish an unambiguous invocation of the right to an attorney.
The Government suggests that the clauses “If I'm going to answer questions,” “If I'm going to talk,” and “I want to talk, but” serve to make Defendant’s request for a lawyer equivocal. But no reasonable officer could believe these clauses are evidence of uncertainty on the part of Defendant. To the contrary, they are definitive, confident, categorical statements that indicate Defendant recognizes that officers are seeking to interrogate him and that he wants an attorney present for that interrogation. The Government also contends that Defendant’s willingness to talk—or at least his willingness to talk at that precise moment—was inconsistent enough with Defendant’s request for a lawyer to negate the request. But suspects may express an intent to waive their right to remain silent while retaining their right to an attorney. And any suggestion by the Government that clarification was needed because the Defendant was making an internally contradictory request is directly refuted by the waiver form itself. Indeed, Defendant was asserting the precise right he was just informed he had; to have a lawyer present during questioning.
Therefore, the Court holds that Defendant unambiguously and unequivocally invoked his right to an attorney, that law enforcement officers impermissibly continued to interrogate him, that his subsequently signed waiver of rights is invalid as to the September 28 interrogation, and that the incriminating statements Defendant made during that interrogation are suppressed.
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Reference to the fact that the defendant’s girl friend would be arrested was not coercive
In US v. Romero (August 2018) the US District Court, D. Massachusetts, rejected the defendant’s claim that his incriminating statements should have been suppressed because the investigators threatened to arrest his girl friend if he did not confess. From the Court’s opinion:
Defendant Elin Mejia Romero was charged with conspiracy to possess with intent to distribute heroin and fentanyl, possession with intent to distribute heroin and fentanyl, and illegal reentry to the United States.
In January 2017, the ATF and the DEA began an investigation into the suspected drug trafficking activities of Defendant and his girlfriend, Noelia Gonzalez. Over the course of six months, from January 2017 to June 2017, a cooperating witness (“CW”) conducted five controlled buys of illegal drugs from Defendant.
On June 8, 2017, at 6:00 a.m., ATF, DEA, and Boston Police officers executed a search warrant at 20 Gordon Avenue, Apartment 2. When they knocked on the door to the apartment, Gonzalez opened the door and allowed the officers to enter.
Two officers, Agent White and Boston Police Detective Slamin, escorted Defendant to the master bedroom of the apartment. Agent White testified that Detective Slamin read Defendant his Miranda rights in Spanish, and that Defendant then responded that he understood his rights and would answer the officers’ questions. Agent White stated that Detective Slamin informed Defendant that a search warrant was also being executed at 943 Hyde Park Avenue, which prompted Defendant to respond that there was “nothing” at the Gordon Avenue apartment, and “everything is there,” meaning the Hyde Park Avenue apartment. Shortly thereafter, Agent White received a call from the agents who had executed the search warrant at the Hyde Park Avenue apartment, and they told him that there was a locked door upstairs with a padlock on it. Agent White stated that he asked Defendant about the door, and Defendant responded that “everything was in there.” Agent White testified that, during the conversation in the bedroom, neither he nor Detective Slamin made any statements about Gonzalez.
Defendant testified that, as soon as he entered the bedroom with Agent White and Detective Slamin, Detective Slamin immediately said to Defendant, “we know you go to 943 Hyde Park,” and “your wife is in the indictment,” but “if you cooperate with us, if you help us, we’re not going to arrest her. We’ll leave her here.” Defendant testified that after Detective Slamin made the statement concerning Gonzalez, he answered all of the officers’ questions. Defendant stated that he answered the questions because he felt “oppressed,” did not want Gonzalez to be arrested, and was worried about what would happen to their children if Gonzalez were arrested. During the conversation in the bedroom, Defendant said he did not believe that he was free to leave. He stated that he could not remember if the officers read him his Miranda warnings before he made the inculpatory statements.
In the present case, even if the Court credits Defendant’s testimony, it is not enough to show that his statements were involuntary. Defendant asserts that Detective Slamin said something like “your wife is in the indictment, but we won’t arrest her if you cooperate.” He does not describe an extended interrogation session, multiple statements concerning Gonzalez, or overt threats about the consequences that would befall his girlfriend or children if he did not cooperate. In light of the totality of the circumstances, this single statement by law enforcement that occurred, at most, a few minutes into a brief interrogation was less coercive than the pressure exerted on the defendant in Hufstetler, and even there found by the First Circuit not to be sufficiently coercive to warrant suppression.
Furthermore, the officers’ alleged statements, as described by Defendant, explaining that Gonzalez would not be arrested at that time, and would instead stay at the apartment that morning, did not constitute an impermissible promise and were, in fact, less of a threat and more of an accurate statement concerning the situation. Given the absence of impermissible threats or promises or any other improper conduct by the law enforcement officers, there is little, if any, other evidence in the record to warrant suppression—the length and nature of the questioning was relatively brief and limited in scope, Defendant does not allege that he was deprived of food, sleep, or bathroom breaks, and there is nothing about his personal background presented to the Court that would suggest that he was particularly susceptible to coercion or to having his will overborn. Therefore, considering the entirety of the surrounding circumstances, and the lack of a suggestion of any coercion beyond one statement made by one police officer that fairly described the situation confronting Defendant, the Court cannot conclude that that single statement about Gonzalez, even if credited as true, rendered the confession involuntary.
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Court finds that testimony by investigator “concerning body language indicative of deception” was inadmissible
In Edwards v. State (June 2018) the District Court of Appeal of Florida, Fourth District, ruled that the detective's testimony concerning body language indicative of deception constituted an inadmissible opinion on credibility, thereby invading the province of the jury, and that the trial court's error in admitting the testimony was not harmless beyond reasonable doubt. From the Court’s opinion:
Michael Edwards appeals his conviction and sentence for aggravated battery. At trial, appellant maintained he was acting in self-defense during a fight with the alleged victim. Critical to his case was testimony by a detective implying that appellant's demeanor during a post-arrest interview indicated deception. We reverse appellant's conviction and remand for a new trial, because the trial court erred in allowing the detective to testify that, based on his training and experience in conducting interviews, certain body language and mannerisms indicate deception. Because appellant exhibited those same mannerisms during the interview, the detective's testimony amounted to an inadmissible opinion on credibility and invaded the province of the jury.
Shortly before the interrogation was played for the jury, the detective testified that he had received special training in conducting interviews. Then, over repeated defense objections, the trial court permitted the state to elicit testimony from the detective regarding the mannerisms he looks for during interviews that would indicate whether the person is being truthful or deceptive. The detective testified that if someone is being honest and truthful, he will maintain eye contact during the conversation. He said, however, that if someone is being deceptive, he will avoid eye contact and look down. Other indicators of deception, according to the detective, are that the person may bury his face, cross his arms to create a barrier, conceal his mouth, or look away.
Defense counsel strongly objected to the detective's testimony on mannerisms, arguing that it was irrelevant and an improper comment on appellant's veracity. The trial court overruled defense counsel's objections, but precluded the state from offering the detective's ultimate opinion as to whether appellant was telling the truth.
Here, the trial court abused its discretion in allowing the detective to testify about body language and mannerisms that indicated deception. This testimony constituted an inadmissible opinion on credibility, thereby invading the province of the jury. This case fits squarely within the rule that opinion evidence on the truthfulness of a defendant is inadmissible.
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Value of video in contradicting defendant’s claims
In Patrick v. State (June 2018) the Supreme Court of Florida rejected the defendant’s claim of ineffective counsel because his attorneys did not challenge the validity of his Miranda waiver and the voluntariness of his confession. From the Court’s opinion:
Patrick argues that the postconviction court erred in denying the claim that his attorneys were ineffective for failing to consult a psychopharmacologist or addictionologist for the purpose of challenging the validity of his Mirandawaiver and the voluntariness of his confession that followed. The motion would have been based on the premise that Patrick was experiencing cocaine withdrawal, which combined with his preexisting conditions of depression and post-traumatic stress disorder to render him unable to comprehend his rights sufficiently to waive them or have the mental capacity to withstand police coercion and speak voluntarily thereafter. Because counsel cannot be deficient for failing to file a meritless motion, … we affirm the postconviction court's denial of this claim.
The confession at issue was given during a video-recorded custodial interrogation after Patrick was read his Miranda rights, said he understood them, agreed to waive them, and signed a waiver form. To establish that the proposed motion would have been successful, Patrick presented the post conviction court with the video of the interrogation and the testimony of Dr. William Morton, a psychopharmacologist. After considering the video and Dr. Morton's testimony, the post conviction court made the following significant finding:
While, arguably, an expert could point out the subtleties that would show withdrawal, that is exactly what they would have been in this case. In other words, there was no glaring behavior that would have led a reasonable judge or jury to believe that [Patrick] was under the influence of any drugs or alcohol or manifesting any drug withdrawal symptoms.
The court also stated that it noted no signs of impairment and that Patrick's answers to the detective's questions were relevant and responsive. Patrick argues that the lack of “glaring behavior” does not invalidate his claim but proves the need for expert testimony. Consistent with this position, Dr. Morton testified that he was able to detect nuances that would not be observed by the average lay person. Even so, the essential point of the post conviction court's finding—that the video belies Patrick's claim, even after consideration of his expert's testimony—remains valid.
Indeed, while tired and distressed concerning his crimes, Patrick seemed intelligent, reflective, and engaged during the interview, even drawing a map for the interviewing officer to show where he left the victim's keys, while providing detailed instructions. Moreover, although Dr. Morton indicated that Patrick would have been experiencing a significant level of physical and emotional discomfort from drug withdrawal, he did not testify that Patrick was incapable of understanding the Miranda rights and the consequences of waiving them, and he found that Patrick's withdrawal symptoms were only “mild to moderate.” Also, although Dr. Morton opined that Patrick showed “confusion” and “some episodes of slow thinking,” Patrick made direct comments during the interview indicating that he understood the likely consequences of his statements. This evidence supports the post conviction court's findings and leads us to conclude that Patrick gave his statements with “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,” such that his Miranda waiver was valid.
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Court rejects the claim that the “false friend technique” and misrepresenting the strength of evidence against the defendant were coercive
In State v. Apodaca (June 2018) the Court of Appeals of Utah rejected the defendant’s claim that his confession was coerced, ruling instead that:
- defendant's incriminating statements to detectives were voluntary and thus admissible to impeach defendant in the event that he testified inconsistently at trial;
- detective's promise that he would relay any of defendant's cooperation to prosecuting attorney was a non-coercive promise;
- detective's statement to defendant suggesting that cooperating would be defendant's best option did not amount to guarantee of leniency;
- false friend interrogation technique did not weigh in favor of conclusion that incriminating statements were coerced;
- alleged police misrepresentations were not sufficiently egregious to overcome defendant's will so as to render his confession involuntary;
- defendant's subjective characteristics did not weigh in favor of concluding that confession was coerced
From the Court’s opinion:
When discussing the “False Friend Technique” the court stated the following:
Apodaca contends that the “false friend technique ... contributed to the coercion,” causing him to make incriminating statements. According to Apodaca, the first detective built rapport by “sympathiz[ing] with Apodaca’s ‘hard life’ and encourag[ing] Apodaca to trust him.” The second detective likewise built rapport with him by encouraging Apodaca to trust him and offering to protect Apodaca when he got out of jail. Apodaca asserts that he “believed the officers' claims of concern and friendship,” and “made the incriminating statements because he believed that the officers would help him if he did.”
The false friend technique is one “whereby the interrogator represents that he is a friend acting in the suspect’s best interest.”…. “Standing alone, the false-friend technique is not sufficiently coercive to produce an involuntary confession, but may be significant in relation to other tactics and factors.”
While it is apparent from the record that the detectives attempted to build rapport with Apodaca by sympathizing with him and encouraging him to cooperate with the investigation, Apodaca has not shown that he has “below-average cognitive abilities” or “mental disabilities and deficiencies” that heightened his susceptibility to the false friend technique…. To the contrary, Apodaca’s interactions with police show him as a savvy negotiator protecting his own interests by offering to trade information in exchange for leniency.
When examining the issue of “misrepresentations” the court stated the following:
Apodaca contends that the detectives' “misrepresentations contributed to the coercion.” “A defendant’s will is not overborne simply because he is led to believe that the government’s knowledge of his guilt is greater than it actually is.” …. “Generally, police ‘half-truths regarding the strength of the evidence’ against a defendant are not ‘sufficient to overcome [a defendant’s] free will and spirit.’
According to Apodaca, the first detective “started the interrogation with a lie,” telling him that it “was not an interrogation at all, but an opportunity.” Near the beginning of the first segment, the detective told Apodaca, “[M]y opportunity here is not to question you, not to interrogate you but to give you the opportunity to tell me your side.” Even assuming this statement could be characterized as misleading, it did not exaggerate the strength of the evidence against Apodaca, … and we are not persuaded it constituted an egregious misrepresentation that weighs in favor of coercion, … And while Apodaca identifies other points in the interview where the detectives suggested “that they had plenty of evidence, including video surveillance and witnesses,” he has not shown that, even if these instances were half-truths, they were sufficient to overcome his will.
Taken together, we conclude that the totality of the circumstances demonstrates that Apodaca’s statements to police were voluntary.
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Defendant's statement that he was “done talking” was a clear and unequivocal invocation of his right to remain silent
In Commonwealth v. Lukach (April 2017) the Superior Court of Pennsylvania upheld the lower court’s decision to suppress the defendant’s inculpatory statement based on the fact that his clear and unequivocal invocation of his right to silence was not honored. From the court’s opinion:
Here, there is no dispute that Appellee was advised of his Miranda rights at the outset of questioning. The question is whether or not his statement, “I don't know, just, I'm done talking. I don't have nothing to talk about” was a clear and unequivocal invocation of his right to remain silent, … We hold, under the facts of the case, that it was.
The Commonwealth takes issue with every part of Appellee's statement, including the words, “I don't know,” “I'm done talking,” and “I don't have anything to talk about.” … The Commonwealth argues that the statement was not “clean and clear” and suggests that Appellee should have said solely “I don't want to talk to you.” This suggests a bright line rule that does not take into account the surrounding circumstances of the case, nor the entire context of Appellee's statement. Although ineloquently phrased, Appellee's statements were not qualified. They were not ambiguous. They were not equivocal. In response to continued questioning, Appellee stated, “I don't know, just, I'm done talking. I don't have nothing to talk about.” … This was the sort of statement that would lead a reasonable police officer, in those circumstances, to understand the statement to be a request to remain silent.
We decline to adopt the rigid, bright line rule for invocation suggested by the Commonwealth. Accordingly, we conclude that Appellee invoked his right to remain silent and the suppression court did not err in finding that he had made a clear and unambiguous invocation.
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