Legal Updates Summer 2018
Interrogation 5 hours after initial advisement of rights was “reasonably contemporaneous” with his initial waiver
In People v. Spencer (July 2018) the Supreme Court of California upheld the admissibility of the defendant’s confession even though there was a 5 hour gap between the initial advisement of his rights regarding questioning him about an armed robbery, and his subsequent confession to murder in an unrelated case. From the California Supreme Court’s opinion:
Spencer next argues that, even if he had been lawfully arrested, his confession to Madden’s murder must be suppressed because Sergeant Keech did not advise him of his rights under Miranda. Spencer concedes that Detective De La Rocha—who interrogated him about the robberies—advised him of his rights and that he knowingly and intelligently waived those rights. He thus concedes that the confession to the robberies “would stand on its own.” Nonetheless, he contends that Sergeant Keech was under an obligation to readvise him of his Miranda rights when he interrogated him about the (Madden) murder.
Spencer does not dispute that less than five hours passed between the time when he waived his Miranda rights [when questioned about the robberies] and when Sergeant Keech began his interrogation. He also does not dispute that the following exchange took place after Sergeant Keech introduced himself and his partner:
“Keech: We’re from Santa Clara Police Department. Okay, uh, I understand you already talked to one of the San Jose detectives. Is that correct?
“Spencer: Yes, I have.
“Keech: Okay. And I understand you ...
“Spencer: I’ve admitted to being involved in a robbery.
“Keech: Okay. And he read you, uh, your rights?
“Keech: Did you understand your rights?
“Keech: Okay. And you waived your rights.
After some further back and forth which, when transcribed, took about a page, Sergeant Keech started the questions bearing on the murder. The sergeant asked, “Where did you spend the night last night? First of all, you understand your rights. You’re willing to talk to us. Is that correct?” to which Spencer answered, “Yes.” The interrogation continued apace from there, with Spencer eventually confessing to participating in the robbery and stabbing Madden multiple times on the way out the door. After getting the details to the crime, Sergeant Keech once more brought up the Miranda rights. Spencer again confirmed he was read “[his] Miranda rights,” that “I know my Miranda rights,” and that he understood those rights. The interrogation terminated shortly thereafter.
Where a subsequent interrogation is “ ‘reasonably contemporaneous’ ” with the prior waiver, and the prior waiver was “knowing and intelligent,” police need not undertake a Miranda readvisement….In determining whether a subsequent interrogation is reasonably contemporaneous, we consider the totality of the circumstances. Relevant considerations include: “1) the amount of time that has passed since the initial waiver; 2) any change in the identity of the interrogator or location of the interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s sophistication or past experience with law enforcement; and 5) further indicia that the defendant subjectively understands and waives his rights.”
We conclude that the subsequent interrogation conducted by Sergeant Keech and his partner was indeed reasonably contemporaneous with Spencer’s waiver of his Miranda rights. Only five hours had passed between the time of the waiver and the interrogation; there was no change in the location of the interrogation and Spencer remained in custody in the interim; Sergeant Keech officially reminded Spencer of his prior advisement; and Spencer unambiguously indicated that he understood the advisement and waived his rights.
Click here for the complete decision.
Value of video recording in contradicting defendant’s claims: three cases
In Toudle v. United States (July 2018) the District of Columbia Court of Appeals rejected the defendant’s claims that interrogator statements undermined the advisement of rights, using the video recording of the interrogation as the basis for their assessment. From the court’s opinion:
A jury convicted appellant Lejeezan Toudle of unlawful possession of a firearm (felon in possession); carrying a pistol without a license outside a home or business (“CPWL”); and possession of an unregistered firearm. In this direct appeal, appellant challenges the trial court's denial of his motion to suppress statements he made during his post–arrest custodial interrogation. He primarily argues that statements his interrogators made during his interview subverted the advice they had earlier given him about his Miranda rights, invalidated the waiver he had made of those rights, and resulted in a confession that was inadmissible. He also contends that the investigators' tactics rendered his confession involuntary. Although we agree that improper statements by an interrogator after a suspect has heard, understood, and waived his Miranda rights may, in the totality of circumstances, invalidate the waiver prospectively, we are persuaded that this is not what occurred in this case. We are also satisfied that appellant's confession was voluntary.
Appellant argues that the interrogators subverted the Miranda warning by disparaging his right to counsel. He focuses on the following statements by Investigator Gamble:
If you get to court and your defense attorney stands up there, who they're not gonna believe anyway. He says well, someone was threatening his life. He needed a gun 'cause he thought they were gonna kill him. They—they said they were gonna kill him. They might even go kill his grandma. They not gonna believe it then. At that point[,] it's too far gone.
We do not agree that the investigators disparaged the right to counsel or that their statements otherwise contravened “the principles the Miranda rights were designed to protect.”…. Here, the investigators' challenged statements concerned the effectiveness of the arguments that might be made by the attorney who would be appellant's trial counsel (pursuant to his Sixth Amendment right to counsel). The investigators' statements were to the effect that, at trial, the fact-finder would be unlikely to believe a gun-possession-in-self-defense theory mentioned by counsel for the first time during trial, after appellant, in answering the interrogators' questions, had denied having a gun at all. The investigators did not, as appellant's argument implies, suggest to appellant that it would be a “grave mistake” to rely on an attorney during interrogation or that appellant would do better without counsel during interrogation.
We also reject appellant's argument that his waiver of his Miranda rights was undermined by the investigators' statements to the effect “that he ‘need[ed]’ to confess ‘now’ ” (a statement appellant argues was “a direct repudiation of the Miranda warning”)…. Here, by contrast, the investigators' statements to appellant were made after he had said he had “no problem” answering questions without counsel present. In addition, the investigators' statements focused not on remaining silent vs. speaking with the investigators without counsel, but instead on the credibility of any reason for having the gun appellant might later give at trial, compared to the credibility of an explanation provided during the interview. We do not discern that the investigators' statements were in derogation of appellant's “ongoing right to remain silent” or that the statements contradicted appellant's right to “request the assistance of counsel at any time.”
Appellant also contends that the investigators threatened him with “additional charges” through statements that appellant argues subverted the advice about his Miranda rights. He highlights the following statements:
Because I can tell you right now, if he did something wrong up in that apartment[,] you're facing that too. I mean, if they find a body or something up in that apartment, guess what you're facing, a homicide charge.
[The other man] could [have] just robbed somebody, or beat somebody up? I mean, I—I'll be waiting for the radio to come out later on tonight saying they found a body up in that apartment .... And I'll say, well guess who we gonna be charging with that?
Actually, we're gonna dig so hard[,] we're gonna find out who that gun belonged to, if there are any bodies on that gun, we're gonna dig.
… Here, by contrast, we conclude that the statements the investigators made about potential, additional charges were not improper because they threatened neither “fabricated” charges nor “unspecified” charges unconnected to the offense for which appellant had been arrested…. Rather, the investigators' comments specifically cautioned appellant, an adult who was “familiar with the system,” that through lab work the police would find out to whom the gun actually belonged. The statements apprised appellant of the potential, in light of the officer's report that appellant had been in possession of the gun they recovered and had fled from police, that he could be charged with a while-armed homicide, robbery, or assault if, after “digging,” evidence of any such offense tied to the gun was found in the apartment building from which appellant had fled. The officers did not threaten to fabricate charges or to charge appellant with any of the “lot of things going on out there,”; rather, they let him know that he realistically faced an investigation that might tie him to other crimes, if any, found to be connected to the firearm.
Click here for the complete decision.
In Torres v. State (February 2018) the Court of Appeals of Texas, El Paso, rejected the defendant’s claim that his waiver of Miranda rights was not knowing, intelligent or voluntary. From the court’s decision:
Our examination of the totality of the circumstances surrounding the interrogation shows Appellant, a roofing salesman, voluntarily waived his rights, and made a free and deliberate choice. In the recording of Appellant's police statement, Detective Mike Lara noted that Appellant spoke to him in English, and Appellant affirmed that he speaks English. He proceeded to warn Appellant that he had the right to remain silent and to refrain from making any statement, and warned him that any statement he made may be used against him at trial and as evidence against him in court. Detective Lara advised Appellant that he had the right to have his lawyer present to advise him prior to and during questioning, the right to have counsel appointed if he could not afford counsel, and the right to terminate the interview at any time. He also informed Appellant, who is not a U.S. citizen, that he possessed the right to contact his consulate, and explained to Appellant, “It says right here, ‘I understand my rights and I hereby knowingly, intelligently, and voluntarily waive these rights.’ ”
After Detective Lara asked Appellant whether he understood the rights that had been read to him, Appellant responded, “Yes.” Appellant did not request an attorney but proceeded to speak unfettered for approximately 50 minutes, freely answering questions asked of him and providing a significant narrative regarding his day and his encounter with Lilia. Appellant never asked that the interview be terminated, never invoked his right to counsel, and seemed willing to explain the events that had transpired. The video recording of Appellant's custodial statement shows no evidence of intimidation or coercion, nor physical or psychological pressure to elicit statements from Appellant.
When the trial court denied the motion to suppress, the judge noted that he had seen the video recording of Appellant's custodial statement as well as many other videos where coercive attempts to extract statements were apparent, and observed that “in this particular case, it appeared to me like this was a real tragic event that occurred and ... my impression was [Appellant] couldn't wait to get it all off of his chest; he wanted to say what he was saying; let everybody know what had happened.”
Click here for the complete decision.
In State v. Baker (September 2017) the Intermediate Court of Appeals of Hawaii found the defendant’s confession to be voluntary, rejecting his claims that threats and promises were made and that lying about evidence was a coercive tactic. From the court’s opinion:
Baker was convicted of two counts of sexual assault in the first degree, and one count of sexual assault in the third degree. He appealed his conviction claiming that his confession was involuntarily given.
The court reviewed the recording of defendant's January 8, 2013, statement to police and duly considered testimony, other exhibits, and arguments of counsel, and based thereon, finds and concludes as follows:
- Before providing any substantive statement, the defendant was administered his Miranda rights and thereafter elected to waive those rights and provide a statement to police.
- Although the defendant only completed the 8th Grade, the DVD demonstrates that he answered police questions readily and responsively, unless he reasonably wanted to think about the question and his answer. He displayed no signs of any inability to understand questions or to respond appropriately to any given question.
- Defendant initially opted to deny any participation in the salient events at issue, but then admitted that he had been a participant.
- During the interview, Honolulu Police Detective Brian Tokita engaged in apparently deceptive assertions regarding intrinsic facts and urged defendant to tell the truth, sometimes using an insistent tone, but did not use deliberate falsehoods extrinsic to the facts of the alleged offenses that were of a type reasonably likely to procure an untrue statement or to influence an accused to make a confession regardless of guilt…. Where the defendant wanted to deny certain allegations, he did so.
- Considering the totality of the evidence, the court concludes that the State has proven by a preponderance of the evidence that defendant gave the bulk of his January 8, 2013, statement voluntarily, knowingly, and intelligently. Under the totality of the circumstances, devices used by the detective did not amount to mental coercion and did not cause defendant's will to be overborne.
Click here for the complete decision.
Court rules that confession was the result of coercive statements to the defendant
In the People v. Phillips (February 2018) the Appellate Court of Illinois, Third District, ruled that the defendant’s incriminating statements should have been suppressed as a result of coercive statements made by the interrogator. From the court’s opinion:
Jasmine Anderson gave birth to a son on July 23, 2010. Phillips was the minor's father, and the family lived together in an apartment. Phillips did not have a job, and he would watch the minor when Anderson was at work. The minor died under suspicious circumstances on December 10, 2010; while in the hospital for the two weeks prior to the minor's death, it was learned that the minor had multiple injuries, some of which were recent and some of which were old. His injuries included two skull fractures, fractured clavicles, hemorrhaging behind an eye, and bleeding on the brain. The doctor who performed the autopsy testified that the minor died as result of blunt force trauma.
On March 30, 2011, Phillips was charged by information with first degree murder.
At the hearing on the motion, the recordings of Phillips's interview were introduced into evidence. In total, three police officers had questioned Phillips during the interview…. No more than two of them were in the interview room at any given time with Phillips. The interview lasted from approximately 11 a.m. to 3:30 p.m. and included breaks for the restroom, food, and water. Phillips, who was then 18 years old, did not have an attorney or family member present at any time during the interview.
On appeal, Phillips argues, inter alia, that his statement to police was improperly coerced such that the circuit court erred when it denied his motion to suppress.
Regarding Phillips's age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning, we find that these factors weigh in favor of a finding that the confession was voluntary. The evidence presented on these factors, including the video of the interrogation, showed that 18–year-old Phillips was intelligent and articulate, and he had experience with the criminal justice system in that he had been interviewed by police several times prior to the interrogation in which he confessed. He had an eleventh grade level education and had no apparent physical impairments.
Additionally, the duration and legality of the detention, as well as the duration of the questioning, weigh in favor of a finding that the confession was voluntary, as the interrogation was conducted postarrest, took place in an interrogation room at the police station, featured no more than two officers at one time, lasted under four hours (including breaks for the restroom and food and drink), and was conducted in the middle of the day. Further, the interrogation did not begin until after Phillips had been read his Miranda rights and he signed the waiver form, factors which also weigh in favor of a finding that the confession was voluntary.
However, the remaining factors—any physical or mental abuse by police, including the existence of threats or promises—weigh strongly in favor of a finding that Phillips's confession was not voluntary. First, Hufford's statement regarding the charge changing was indicative of improper coercion. Hufford told Phillips:
“I'm trying to save your life, okay?... None of us here want you to go to prison forever. We don't want you to die. We don't want any bad thing to happen to anybody, especially an 18–year-old kid that made a mistake. But by you giving this type of interview, the people will see later—you show absolutely no remorse. Okay? We're not asking you anymore, did you kill [the minor]. That, that part of the investigation's over. Okay? We've already showed enough probable cause in front of attorneys and judges that you killed [the minor]. Okay? We're giving you a chance to save your life. You know what that charge carries right? They told you what the sentence was. I heard them. Okay? That's not even the number of years. That's till you die. Okay? The only reason, just because that's your charge, that doesn't mean that's the finalized thing that's going to happen. There's a long time before you're sentenced and you're found guilty. There's a lot of time. A lot of things can change, including that charge, if the truth is brought out. And if it comes out of your mouth.”
This court has stated that “[t]o constitute an offer of leniency that renders a confession inadmissible, a police statement must be coupled with a suggestion of a specific benefit that will follow if the defendant confesses.” … In this case, Hufford's statement included a suggestion of a specific benefit—that the charge could change.
Here, the detectives did not tell Phillips that they would recommend a lowering of the charge. Certainly, the detectives did not clarify that the prosecutor was the only one who could lower the charge. Rather, the clear import of Hufford's statement was that the defendant could avoid the first degree murder charge if he confessed, which weighs in favor of finding the confession involuntary.
Second, the “baby killer” comments indicate improper coercion. The following statements were made to Phillips:
HUFFORD: “You don't get punished in this justice system for telling the truth. You get punished by doing an accident or doing something intentional and showing no remorse. Those people are called killers. And what do you think happens to baby killers in prison? What do you think is going to happen? You're eighteen.”
MEIRESONNE: “It's mandatory life.”
HUFFORD: “And your life won't be long as a baby killer in prison. Check the history papers. Stay online when you get a chance in the county jail. See what happens to baby killers in jail. You show no remorse whatsoever and that makes me angry.”
Which was followed moments later with:
MEIRESONNE: “When you get convicted of this and you go over for sentencing in front of that judge, every judge wants to send a baby killer to prison forever.”
While the circuit court dismissed these comments as harmless because they were “made in connection with remorse that nonremorseful defendants are treated differently than remorseful defendants,” we find the court's finding misplaced. These “baby killer” statements were threats of physical violence that case law has reasonably found to be indicative of improper coercion.
The statements made to Phillips regarding the charge changing and what happens to baby killers in prison must be considered in light of the totality of the circumstances. Thus, we also note that numerous comments were made to Phillips that the officers were trying to help him and/or save his life. They also told him that he was too young to go to prison for the rest of his life and that “when a person is truthful and honest and tells the police what happened, that goes a long way as it goes down through the court system. One of the things that the courts really like is the fact that somebody takes responsibility for their actions.”
Considering the multiple instances of coercive conduct employed by the police in this case, we find that the factors weighing in favor of a finding of involuntariness outweigh the factors indicating the contrary, and we therefore hold under the totality of the circumstances of this case that Phillips's confession was involuntary.
Under the circumstances of this case, we hold that the circuit court erred when it denied Phillips's motion to suppress his statement to police. We remand the case for further proceedings consistent with this opinion.
Click here for the complete decision.
Court rules confession should have been suppressed: lack of Miranda advisement and promises of leniency
In Wilson v. State (April 2018) the District Court of Appeal of Florida, Second District, ruled that the defendant’s confession should have been suppressed because he was not advised of his Miranda rights and promises of leniency were made to him during the interrogation. From the court’s opinion:
On December 18, 2012, Mr. Wilson agreed to meet with officers of the Sebring Police Department at a park near his home. He had contacted the officers at the request of a friend. When the officers arrived at the park, they asked if Mr. Wilson would be willing to talk with them at the station. He agreed, and the officers gave him a ride in their vehicle.
The interview was held in a small room with a closed door at the station. It began around 2 p.m. and ended just after 5:30 p.m. Minutes into the questioning, Mr. Wilson was told, “Well, the reason we're here to talk to you today is we've had a series of robberies in which you have become a suspect.”
Mr. Wilson denied any involvement, but the officers were not deterred. The officers stated that they had collected evidence from the scene and that they knew he was involved. The officers stated they were willing to work with him, but he needed to “stop playing games” and “start either coming clean or you're going to end up taking the ride.” The officers pressed him with increasing details of evidence implicating him in the crime, including DNA and fingerprints found on items linked to the robbery. These items were found at the house of his friend, Terrell. They stated they had GPS data and phone call recordings and could place Mr. Wilson at that house just after the robbery. After some time, Mr. Wilson acknowledged he may have touched a gun that was at the friend's house, but he denied using the gun, denied owning a cell phone, and denied any involvement in the robbery.
They told him that a shot was fired from a gun during the robbery, making it “a 10/20/Life case.” They also stated that they had his DNA on a gun that was fired and that they recovered a projectile and casing from the scene. After further denials, one officer stated: “We know pretty much what's happened. All right. We wanted to give you the opportunity to be forthcoming, so we can tell the State Attorney that you need a second chance.” After explaining that they had “a stack of evidence” against Mr. Wilson, one officer stated: “When it comes down, it's going to come down so hard until there's nothing that we can do for you.... We're giving you the opportunity to continue your life.”
Mr. Wilson was told that they could have arrested him already and, if he continued to deny his involvement, “when we present it to the State Attorney, all right, they are going to issue a warrant for your arrest. And you're going to go to jail.” However, they offered him a way out and stated they were willing to recommend probation if he would tell them the truth, but this was a one-time offer.
… The officers then explained that they would be willing to recommend that his prior robbery charge and the instant case be lumped together and that he receive a total of eight years of probation. When Mr. Wilson questioned the impact of a recommendation, one officer reassured him: “I've been a cop 16 years .... I have never seen the State not go with the recommendations that we make.” The officers agreed to “stand up” for Mr. Wilson and recommend no prison time. When Mr. Wilson stated, “I don't want to go to prison,” one officer offered to put on the record, “I promise you I will go to the State Attorney and recommend that you catch probation. No prison time.” The other two officers agreed, and they told him that they needed to get the truth from him that day: “In other words, you can't leave here today and think about it and call us tomorrow.... [I]t's all or nothing right here right now.”
After giving his recorded statement confessing to his involvement in the armed robbery, Mr. Wilson was in fact permitted to go home, and it was not until a follow-up interview the next day that Mr. Wilson was advised of his constitutional rights, commonly known as the Miranda warnings. Mr. Wilson was tried and convicted and sentenced to fifteen years in prison on the aggravated battery count and consecutive life sentences with a ten-year minimum mandatory term for the remaining counts.
The issue presented by Mr. Wilson is whether the conduct of law enforcement officers during his interrogation violated protections afforded him by the Constitution of the United States and the Constitution of the State of Florida and, more specifically, those protections provided by Miranda. Based on our review of the record, including the audio and video recording of the interrogation, we conclude that the confession given by Mr. Wilson, elicited prior to the administration of Miranda warnings, was obtained improperly. The trial court erred in denying Mr. Wilson's motion to suppress, and this error was not harmless.
The question of whether Mr. Wilson was “in custody” is a mixed question of law and fact, which we review using a two-step process…. To evaluate how a “reasonable person” in Mr. Wilson's position would have perceived the situation, we consider the four factors set forth in Ramirez …In doing so, the point of perception is not that of the inquiring law enforcement officer but that of a reasonable person in the suspect's position. The four factors are:
(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.
The first factor weighs in the State's favor. Mr. Wilson agreed to meet the officers at a park near his home. At the officers' request, Mr. Wilson, who was barefoot, accepted a ride to the station in the officers' vehicle. He was not handcuffed, and they assured him that they would bring him back to the park at the conclusion of the interview. After reviewing the record, we conclude that Mr. Wilson voluntarily agreed to be transported for the interview.
We next examine the second factor—the purpose, place, and manner of the questioning. The place of questioning was a small room at the police station. While questioning at the police station is not determinative of whether the interrogation was “custodial,” it is certainly consistent with a custodial interrogation… The record further discloses that multiple officers entered and exited the room throughout the interrogation, and multiple officers were present for almost all of the interview.
As for purpose and manner, it is clear that the purpose of the questioning from the inception of the interview was to pressure Mr. Wilson to explain his involvement in the Pizza Hut robbery and to obtain a confession. The manner of the questioning supports this conclusion. Questioning was confrontational and accusatorial, and Mr. Wilson was pressured throughout the interview to “tell the truth” and explain his involvement in the robbery. The officers were clearly frustrated by Mr. Wilson's continued denial as to any involvement or knowledge, and they made it clear that this was his one opportunity to cooperate with them and receive their assistance by admitting his involvement.
… the questioning of Mr. Wilson was confrontational and accusatorial almost from the start of the interview. They told him right out of the gate that he was a suspect in a series of robberies, and they specifically mentioned an armed robbery at a Pizza Hut on December 12, 2012. When he claimed to have no knowledge of or involvement in the robbery, the officers told him they had a stack of evidence against him, including DNA, fingerprints, ballistics, and voice forensics, and they said unequivocally that they could place him at the Pizza Hut during the robbery.
In response to continued denials of any involvement, the officers stated that they knew he was lying, told him to stop playing games, and reminded him that this was a 10/20/Life crime while he was awaiting sentencing on another robbery charge. They told him that they had sufficient evidence to arrest him already. Mr. Wilson was told on more than one occasion that only one of the perpetrators would get the benefit of cooperation. The final effect was to obtain a confession. We conclude that this factor weighs against the State and in support of a conclusion that Mr. Wilson was in custody at the time he made his confession.
The third factor to consider is the extent to which Mr. Wilson was confronted with evidence of his guilt, and we note that the circumstances of this factor can weigh heavily in the determination of whether the suspect was in custody……
Here, the transcript reveals the frequent and extensive use of this information throughout the interview, some of which we have already set forth. As noted in the discussion of the second factor, the officers repeatedly informed Mr. Wilson that they had physical evidence against him, including DNA and fingerprints, and fingerprints and DNA “don't lie.” They explained that they had a gun with his DNA on it and a casing that proved that the gun had been fired at the Pizza Hut; they had ski masks that a witness confirmed were used during the robbery, and they were certain his DNA would be on one; and they had GPS data and cell phone calls confirming his involvement. When he offered an innocent explanation for why his fingerprints might be found on a gun at Terrell's house, the officers told him that he was just tying himself more and more to the armed robbery.
… Mr. Wilson was confronted with evidence that strongly suggested his guilt, and this continued despite his repeated denials. While “the significance of this factor may be diminished if the police do not express their belief in the suspect's guilt or do nothing to refute the suspect's offered explanation of innocence, the officers did just the opposite here. When Mr. Wilson asserted his innocence and disputed the claims that he was involved, the officers accused him of lying, told him to stop playing games, and indicated that his arrest was inevitable. We conclude that this important factor weighs in favor of a finding of custody.
The final factor is whether Mr. Wilson was informed that he was free to leave the place of questioning. At first glance, this factor appears to weigh in favor of the State. At the outset of his contact with the officers in this case, Mr. Wilson was told that he was free to go, shown the way out, and told that no matter what he said he would not be arrested that day. In fact, he was not arrested that day and was returned to his car after giving his statement.
However, we note that the officers' questioning as the interview progressed suggested that Mr. Wilson was free to leave only after admitting to his involvement. One officer stated:
You are going back to your car at Lake June Park when this conversation is over. I give you my word as a Christian on that. All right. You are not leaving from here to go to jail. I—but here is the deal. Plain and simple, 1,000 percent, we can put you inside Pizza Hut on December 12th of this year.
Another officer later stated, “[W]hen we are done here you're back to your car.” Mr. Wilson asked, “[W]hat do you want from me?” And the officer answered, “I want the truth, Andre.” He again denied involvement, and the questioning continued despite Mr. Wilson expressing concern over the time and needing to meet someone at 3:30. After the officers gave assurances that they would go to bat for him if he told the truth, Mr. Wilson asked, “And then I get to go home?” The officer confirmed, “Absolutely.... After we get through with this, we'll head off.” Shortly thereafter, Mr. Wilson made a confession.
We recognize again that each suppression case is highly fact-dependent. Similar conduct may not suggest a custodial interrogation when viewed in isolation or under a different set of circumstances. However, Mr. Wilson had not been read his Miranda warnings, had been repeatedly told that the officers could have already arrested him if they wanted to, and if he continued to deny his involvement, the State Attorney would direct them to do just that. He had been driven to the station in his bare feet and was interviewed with multiple officers in the room at a time, all while being presented with accusations and evidence of his guilt. Thus, while Mr. Wilson was told that he was free to leave, these statements were qualified by the officers' words and actions such that this factor does not weigh in favor of the State and is, at best, in equipoise.
…. We find that, under the totality of the circumstances, a reasonable person in Mr. Wilson's situation would not have felt free to leave, and thus we conclude that Mr. Wilson was in custody at the time he made his statement.
The confession here followed suggestions by the officers that they had the power to effect leniency and “save” Mr. Wilson's life….. the officers stated that Mr. Wilson was a suspect in a “string of robberies,” noted that this was “a 10/20/Life crime,” and made it clear that Mr. Wilson was looking at significant prison time if he failed to cooperate and give a statement. They presented themselves as his only option to avoid this fate and promised to recommend probation.
We have not overlooked the fact that the officers spoke in terms of recommendations, and the sergeant informed Mr. Wilson that the officers could give no guarantee as to the sentence he would receive. However, these statements were undermined by the officer's representation that, in sixteen years, the State had always taken the officer's recommendation. The long-time officers used their seniority to offer unrealistic hope in the form of assurances that their recommendation of probation would be accepted if Mr. Wilson would just tell them the truth about his involvement in the robbery.
The officers exacerbated the coercive impact of the misrepresentations when Mr. Wilson asked to call his attorney and get his opinion about the deal being presented. In response to this request, one officer stated: “I'll do you one better.... I'll bring you our boss in. All right. And you can ask him.” Mr. Wilson stated he wanted to get his lawyer's opinion, he was offered the sergeant's opinion as a better alternative, and, having received the sergeant's opinion, Mr. Wilson provided his confession. All of this took place without Mr. Wilson having been given Miranda warnings.
We find that, under the totality of the circumstances, the suggestions that the officers could effect such leniency, coupled with the representation that the sergeant's opinion was superior to that of his own counsel, amount to outrageous police conduct. Further, we find a clear nexus between the outrageous conduct and Mr. Wilson's confession. Therefore, we conclude that the confession was not freely and voluntarily given. Such a coerced confession should have been suppressed.
Click here for the complete decision
Interrogation room and seating arrangement as a consideration in assessing the voluntary nature of the confession: two cases
In People v. Cubero (April 2018) the Supreme Court, Appellate Division, Third Dept, New York upheld the admissibility of the defendant’s confession. From the court’s opinion:
Defendant was employed as a residence counselor at a group home for adults with mental illness. In this position, he was responsible for the care and supervision of the facility's residents. One such resident was the victim, who has been diagnosed with schizoaffective disorder and mild mental retardation. In January 2014, the Justice Center for the Protection of People with Special Needs, an agency vested with statutory authority to investigate and prosecute crimes involving abuse or neglect of individuals with physical or cognitive disabilities, received a report that the victim had been sexually abused by defendant. After an investigation, a Special Prosecutor for the Justice Center presented the case to a grand jury and obtained a 14–count indictment. A jury convicted defendant of endangering the welfare of an incompetent or physically disabled person in the first degree, two counts of criminal sexual act in the third degree and two counts of sexual abuse in the second degree. County Court imposed an aggregate sentence of eight years in prison to be followed by 10 years of postrelease supervision. Defendant appeals.
…. Additionally, a recording of defendant's statement to investigators was admitted into evidence. In that statement, defendant admitted to putting his penis in the victim's mouth on two different dates. He corroborated the victim's testimony regarding the location of these incidents, how they cleaned up afterwards, that he showed her pornography and that he is uncircumcised. A State Police investigator testified that pornography was discovered on a computer in the facility's office under defendant's username and password. Deferring to the jury's credibility determinations, the guilty verdict is not against the weight of the evidence.
County Court properly denied defendant's motion to suppress the inculpatory statements that he made to Justice Center investigators. “Determining whether a statement is voluntary is a factual issue governed by the totality of the circumstances and the credibility assessments of the suppression court in making that determination are entitled to deference”…. Testimony at the suppression hearing established that the interview with defendant lasted approximately two hours and took place in his employer's office, which was a neutral location. The investigators explained to defendant that he did not have to answer their questions and could leave at any time. He was not restrained, sat closest to the door and, at one point, interrupted the interview to call his wife. At the end of the interview, defendant left on his own and went home. Inasmuch as “[t]he police are permitted to lie or use some deceptive methods in their questioning as long as ‘the deception was [not] so fundamentally unfair as to deny due process,’ [t]he limited use of those tactics here was not so extensive as to induce a false confession or overcome defendant's will, which would render defendant's statements inadmissible” Accordingly, the court did not err in denying defendant's suppression motion.
Click here for the complete decision.
In US v. McCauley (April 2018) the US District Court, N.D. Ohio, Western Division the court found the defendant’s claims that his Fifth Amendment privilege against self-incrimination was violated during the April 17, 2017 interview with ATF agents at the Toledo Parole Authority Office was without merit. From the court’s opinion:
On March 31, 2017, while conducting surveillance of the Quality Inn, members of the Toledo Police Vice and Bulk Cash units observed McCauley’s car. The same day, Detective Picking was contacted by a confidential source who stated he/she could purchase methamphetamine from McCauley in the hotel room. Detective Picking met the confidential informant and provided him/her with funds from the Toledo Police Vice Drug Fund to purchase the drugs. He/she purchased the drugs in the hotel room and returned the drugs to Detective Picking. A field test confirmed the substance purchased was methamphetamine.. The confidential source also informed Detective Picking that he/she had observed a handgun in the hotel room.
After receiving the warrant, officers entered the room. Seized were a scale, a Beretta, 40 caliber pistol, a Walther, 22 caliber pistol, three bags of heroin, methamphetamine, a needle/cap, three cell phones, $110.00 cash, and a wallet with McCauley’s ID.
The search also resulted in McCauley’s arrest. Days later McCauley was released on bond on what were then state charges. Following his release on April 3, 2017, McCauley reported to his parole officer, Jamie Gentene.
Gentene and McCauley were the only two individuals present at the April 3, 2017 meeting. During the meeting, McCauley admitted to possession of the firearms, heroin, and methamphetamine found in the hotel room. He also admitted that he had been selling the drugs and that he had purchased the firearms. Following his admission, Gentene asked whether he would like to speak to ATF agents about the purchase of the firearms. Gentene states that she did not tell McCauley that, in order to stay out of jail, he was required to talk to federal agents or even make the admissions to her. Instead, she maintains that McCauley made the admissions to her as if he getting them off his chest and that he was willing to speak with ATF agents, who were not involved in McCauley’s state supervision.
Following the admission, McCauley was not taken into custody but was required to report weekly to Gentene. At one of these weekly reporting meetings on April 17, 2017, McCauley spoke with ATF agents in a conference room at the Adult Parole Office in Toledo. Present in the meeting were McCauley and three ATF agents….. All three agents were in plain clothes and of similar, medium build as McCauley. Although the conference room was in the interior of the building, one wall contained a window looking onto a photocopier in the parole office. The conference room had two doors and contained a conference table and eight chairs. During the interview, both doors were shut but at least one of the doors was unlocked. McCauley claims he “could not get to either door without passing an agent.” But ATF Agent Chamberlain stated that McCauley “took the seat right next to the door he entered.”
Prior to the interview, ATF Agent Chamberlain stated that he told McCauley that he was free to leave and could stop the interview and do so at any time. Because McCauley was told he was not in custody and could leave at any time, he was not given his Miranda warnings. During the interview, McCauley admitted possession of the two firearms and disclosed where he had purchased them. Though McCauley revealed the identity of one seller, he would only say that he purchased the Walther .22 caliber from someone on Craigslist. The ATF agents did not press McCauley to name the Craigslist seller after he first declined to do so. At the conclusion of the interview, approximately ten minutes after it commenced, McCauley exited the room. It was not until six months after the interview that McCauley was taken into custody.
McCauley claimed that his Fifth Amendment privilege against self-incrimination was violated during the April 17, 2017 interview with ATF agents at the Toledo Parole Authority Office in that he was not advised of his Miranda rights.
Here, from start to finish, the objective circumstances do not evince McCauley was restrained from movement to the degree of formal arrest. McCauley was told at the beginning of the interview that he was not under arrest and was free to end the interview and leave at any time. The interview was conducted in a conference room at the Toledo Adult Parole Authority office, a place McCauley had been multiple times since his parole began three years prior in 2014. The room itself had an interior window, a conference table, approximately eight chairs, and two doors, at least one of which was known to be unlocked throughout the interview although both were closed. Three ATF agents were present for the interview; all in plain clothes, none brandishing a weapon. While McCauley and ATF Agent Chamberlain have different recollections of where each participant in the interview sat, there is no question the McCauley was never restrained during the interview and that after ten minutes, the interview ended and McCauley left the room.
Click here for the complete decision.
Elements of a false confession
In Dukes v. City of Albany (February 2018) the US District Court, N.D., New York, detailed elements of a false confession. From the court’s opinion:
The following facts are taken from the complaint and assumed true for purposes of this motion. In 1996, Dukes, who was then 19 years old and living in Albany, agreed to help Matthew Parsons (“Parsons”) rob Mitchell, a small-time marijuana dealer and college student Parsons met while working at the SUNY Albany cafeteria.
On October 4, 1996, Dukes and Parsons, aided by Lavell Jones (“Jones”), Pierre Lyons (“Lyons”), and Zakee Abdul–Hameed (“Abdul–Hameed”), broke into Mitchell's apartment while he was not home. Although the quintet initially escaped, Albany police managed to identify and charge three of the men—Parsons, Lyons, and Abdul–Hameed (but not Dukes or Jones)—with the robbery.
Four months later, on February 18, 1997, someone shot and killed Mitchell in the vestibule of his apartment building. Forensic evidence recovered from the scene indicated Mitchell had been shot at close range by a .25 caliber bullet. Dukes eventually confessed to the murder.
Duke's murder conviction was later vacated after another man confessed to precise details of crime; Dukes brought § 1983 action against city and six city police detectives, asserting claims for malicious prosecution, denial of fair trial rights, violation of right against self-incrimination, and negligence. Defendants moved to dismiss for failure to state claim. The Motion was denied. In their discussion of the false confession, the court described the following elements:
Beginning around 9:00 a.m., Detectives Wilcox and Matos interrogated Dukes about the robbery of Mitchell's apartment. Although they did not read him his Miranda rights, they asked plaintiff to initial a form stating they had in fact done so. By 12:30 p.m., defendants convinced plaintiff to acknowledge his involvement in the October robbery and persuaded him to sign a statement Detective Matos had prepared to that effect.
Dukes alleges Detective Matos had secretly added language to this written statement which falsely indicated plaintiff also had knowledge of Mitchell's murder in February. According to plaintiff, the detectives' questioning that morning did not touch on the subject of the murder at all and therefore plaintiff failed to notice defendants had included information about this second crime before he signed the statement.
After taking a break for lunch, Detectives Wilcox and Matos resumed the interrogation, again asking Dukes to initial a form acknowledging his Miranda rights even though they never actually read them to him. The detectives then began to question plaintiff about Mitchell's murder. Plaintiff repeatedly denied having any involvement in the murder, at one point breaking down in tears.
Nevertheless, Detective Wilcox began to feed Dukes a false narrative in which plaintiff had gone to Mitchell's apartment with Jones and Lyons, two of the other robbers, and that Jones had shot Mitchell. Detective Wilcox demanded that plaintiff adopt this story, and threatened plaintiff with the death penalty if he refused. Eventually, plaintiff relented and signed a statement, again prepared by Detective Matos, which recounted the story Detective Wilcox had pushed onto plaintiff. Attorney Gould returned to the room and terminated the interview. Plaintiff was arrested.
On November 6, 1998, Dukes faced trial in Albany County Court on the robbery and murder charges. No forensic evidence tied plaintiff to the February murder, …. Instead, the prosecution relied on Detectives Wilcox and Matos, both of whom testified falsely about the circumstances of plaintiff's interrogation and the validity of his confession.
The jury relied on this evidence to convict Dukes of the February murder as well as the October burglary and robbery of Mitchell's home. Plaintiff was sentenced to 25 years to life for the murder, and to 12.5 to 25 years for the robbery. Plaintiff took a direct appeal, and later sought habeas relief, but various courts rejected his claims.
On September 3, 2014, 17 years after Dukes' original arrest, police in Ohio arrested Conrad, the man initially identified as a suspect in Mitchell's murder, for the stabbing death of his girlfriend. During an interrogation by the Cuyahoga County police, Conrad confessed to Mitchell's murder, accurately stating numerous details, including the distinctive position in which Mitchell's body had fallen as well as the relatively unique caliber of bullet used.
Upon learning of Conrad's confession, Dukes sought relief from Supreme Court, Albany County, which granted vacatur of both of plaintiff's convictions. Although the County Court dismissed the murder charge outright, it did not dismiss the charges arising from the October robbery of Mitchell's apartment. Plaintiff pleaded guilty to robbery in the first degree in satisfaction of this remaining charge, received a sentence of 7 to 14 years (since he had already served 18 years on the murder and robbery convictions), and was released.
Click here for the complete decision.
Failure to call false confession expert is not suggestive of ineffective counsel: two cases
In Hughes v. Sheahan (May 2018) the US District Court, N.D. New York, rejected the defendant’s appeals, including the claim that his counsel was ineffective because they did call a false confession expert as a witness. From the court’s opinion:
On March 6, 2012, following a jury trial in the Albany County Supreme Court, Hughes was convicted of predatory sexual assault against a child…’ rape in the first degree, rape in the second degree, and three counts of endangering the welfare of a child...
The facts precipitating the charges against Hughes were later summarized as follows:
When the police located defendant's 16–year-old stepdaughter after she ran away from home, she told them that she had been subjected to physical and sexual abuse by the 39–year-old defendant. He then voluntarily spoke with police and, in a video-recorded interview, gave a written statement in which he admitted that he had “disciplined” the victim by making her fellate him and have sexual intercourse with him on at least four separate occasions.
In his appeal,Hughes argues that his trial counsel was ineffective for pursuing the strategy of “claiming a coerced confession” without consulting with, or calling as a witness, an expert on the subject of false confessions. Petitioner claims his confession was a result of interrogation techniques that were “overwhelmingly deceptive and coercive,” and which a typical juror “would not understand ... without expert assistance.”
There is no basis on which to conclude that the state court unreasonably rejected this claim. As an initial matter, Hughes has not established that testimony from a false confessions expert would have been admissible under New York law at the time of his trial. New York courts have long rejected attempts by defense counsel to call a false confessions expert and found that the failure to call such an expert does not amount to ineffective assistance of counsel.
Hughes presents no evidence supporting his contention other than an article from 2008 pertaining to false confessions. Petitioner has not established that the New York courts would have allowed false confession expert testimony at the time of his trial, or, in any event that such testimony was required for trial counsel to have reasonably pursued his trial strategy.
On March 29, 2012, approximately three weeks after the jury rendered its verdict in Hughes's criminal trial, the New York Court of Appeals “for the first time ... considered the admissibility of expert testimony on the subject of false confessions.”
In Bedessie, the Court “held that expert testimony on the personality and situational factors associated with false confessions may be helpful to a jury in a proper case, but is admissible only upon a showing that the proposed testimony is ‘relevant to the defendant and interrogation before the court.’ ”
Since the Court of Appeals' opinion in Bedessie, New York courts “have analyzed the relevancy of such proposed expert testimony based upon ‘the nature of the interrogation, the applicability of the science of false confessions to the defendant and the extent to which the People's case relie[s] on the confession[.]’ ”
Hughes's submissions here do not clearly identify the proposed expert testimony that would have been offered, and deemed both relevant and properly admissible at the time of trial, much less that trial counsel was deficient in failing to seek to obtain such evidence. Rather, he appears to contend that he admitted to raping the victim because, according to his family members, he is “shy” and “does not handle conflict or stress well.”
It is noted that the video recording of the entirety of Hughes's interrogation and creation of a written statement–including the time during which the interrogation room was empty because petitioner was given a break to go outside and smoke a cigarette with his wife–was slightly over two and a half hours. Having reviewed the state court records, including the videotaped interview in its entirety, this Court cannot conclude that the state courts' holdings constitute an unreasonable application of clearly established Supreme Court precedent. Therefore, habeas relief on this basis is unwarranted.
Click here for the complete decision.
In Barros v. State (April 2018) the Supreme Court of Rhode Island held that
trial counsel was not ineffective for failure to consider and present expert testimony on issue of false confessions. From the court’s opinion:
In order to address Mr. Barros's contention that his trial counsel was ineffective for failing to present an expert on false confessions at his criminal trial and also his contention that the justice erred in denying his request for funds to hire an expert witness in connection with his application for postconviction relief, we must discuss in more detail the facts of the instant case.
On May 24, 2012, a hearing was held, at which Mr. Barros's counsel requested “funds to hire an expert on false confessions” in order to advise counsel as to whether or not “an expert would have been helpful in this case.” An exchange ensued between counsel for both parties and the justice with respect to what Mr. Barros's counsel contended would have been testified to by such an expert at trial and whether or not testimony of such an expert would have been admissible at the trial. Mr. Barros's counsel stated:
“I'm not asking, or I'm not looking for an expert to come in and say Mr. Barros was telling the truth or lying when he made the confession. What I'm looking for is an expert—and I know those experts are out there—that would look and testify, look and testify about risk factors. First of all, explain to a juror that sometimes people do admit falsely to committing crimes, what are the risk factors, are the risk factors present, and then, not necessarily say in this case Mr. Barros was telling the truth or not, but give the jury the building blocks, the information they need to make a decision on whether a confession possibly was false.”
Ultimately, the justice denied the request for funds. He held that, taking into account that he had been the trial justice in Mr. Barros's criminal trial, he would not have permitted expert testimony on false confessions because “[c]redibility decisions are quintessentially issues for a jury.”
….. the only two questions properly before this Court in the instant action as it relates to expert testimony on false confessions are: (1) whether or not Mr. Barros's trial counsel was ineffective for failing to utilize an expert witness on false confessions; and (2) whether or not the justice erred in refusing funds to hire such an expert in this postconviction relief action. In order to answer those questions, we need not pass upon whether or not the testimony of an expert witness on false confessions would have been admissible in Mr. Barros's criminal trial. In our opinion, it is clear from the record in this case and from the silence of our jurisprudence concerning this issue that failure to call such an expert witness on false confessions in Mr. Barros's criminal trial was not an error which rendered trial counsel ineffective.
Click here for the complete decision.
Misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible
In State v. Johnson (April 2018) the Court of Appeals of South Carolina upheld the voluntariness of the defendant’s confession, indicating the misrepresenting evidence is not a coercive tactic. From the court’s opinion:
Justin Jermaine Johnson appeals his convictions for two counts of murder, kidnapping, burglary in the first degree, and possession of a firearm during the commission of a violent crime. He maintains the circuit court erred in, among other claims, admitting his confession to police when it was not voluntarily given.
Misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible.”… “Both this [c]ourt and the United States Supreme Court have recognized that misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible .... The pertinent inquiry is, as always, whether the defendant's will was ‘overborne.’
Investigators Coker and Moore told Johnson the trunk of his car was analyzed and only his fingerprints were found, his shoe matched a footprint left from kicking in the door, his ring matched a wound left on Kaisha, and one could hear him in the background of the 911 calls. The primary evidence repeatedly referenced by the Investigators related to the 911 calls, which they claimed made Johnson's story impossible to believe. While this information was either unconfirmed or inaccurate, courts have routinely held the misrepresentation of evidence does not render a confession involuntary unless it is demonstrated the free will of the defendant was overborne.
Click here for the complete decision.
Utah Supreme Court carefully details criteria to consider in evaluating waiver of rights from a 15-year-old
In R.G. and D.G., Appellants, v. State, Appellee (November 2017) the Supreme Court of Utah held that juveniles, who were 15 years of age, knowingly, intelligently, and voluntarily waived their Miranda rights during interview with police detective at school regarding sexual assault. From the court’s opinion:
D.G. and R.G. were accused of aggravated sexual assault in juvenile court. Both D.G. and R.G. filed a motion to suppress their post-Miranda statements regarding the sexual assault to a detective during an interview at their school. The juvenile court held an evidentiary hearing and denied the motion to suppress the post-Miranda statements. Both interviews with the detective regarding the sexual assault were introduced at trial. D.G. and R.G. were adjudicated delinquent for committing aggravated sexual assault. The court of appeals certified the case to this court….
We hold that the juvenile court did not err in denying D.G.'s and R.G.'s motion to suppress their post-Miranda statements. And, considering the totality of the circumstances surrounding their waivers, we hold that D.G. and R.G. knowingly and voluntarily waived their Miranda rights during the interview with the detective at their school.
Near the beginning of the school year in 2013, two fourteen-year-old boys, D.G. and R.G. went over to another male friend's house after school. After receiving a phone call from R.G., the victim and her friend, also both fourteen years of age, took the bus and joined D.G. and R.G. at the friend's house. D.G., R.G., and the third friend drove to the bus stop to pick up the two girls. While at the house, R.G. held a box cutter to the victim's throat and engaged in nonconsensual sexual intercourse with the victim. D.G., the other boy in the room during the sexual assault, also engaged in nonconsensual oral sex with the victim.
A few months later, the victim reported the sexual assault involving D.G. and R.G. to the West Valley City police. A West Valley City detective conducted individual interviews with D.G. and R.G. at their school in the school resource officer's office without a parent present for either minor. D.G. was interviewed first, and R.G.'s interview followed.
At the beginning of D.G.'s interview, the detective told D.G. why he was there and described his role as a detective. He asked D.G.: “You know what we do, right, police detectives? You know, we investigate things that may be crimes.” The detective told D.G., “I just have to let you know that you don't have to talk to me.” He then recited the Miranda rights to D.G. without pausing to check for understanding until after the rehearsed speech. Following the warning, the detective informed D.G. that he could “stop answering questions at any time and [he could] request counsel at any time during questioning.” He asked D.G., “Do you understand those rights?” Then, the detective informed D.G. that he was not under arrest and he was not telling him anything to make him scared. The detective again asked, “Having those rights in mind, can I let you know [why] I'm here, you want to talk to me, tell me what is going on?” D.G. agreed to talk with the detective and eventually confessed to participating in non-consensual sex with the victim at the request of R.G.
As R.G.'s interview began, the detective said to R.G.: “The law makes sure and requires me to tell you what your rights are, okay?” The detective then recited the Miranda warning to R.G. from memory. His recitation was without the intonation and inflections that normally gives meaning and nuance in verbal speech. The volume of his voice lowers, and he speaks quickly in a well-rehearsed speech. The detective then asked R.G. the following questions: “Do you understand those rights?” “Having those rights in mind, can I talk to you?” and “Do you want to talk to me?” R.G. then proceeded to talk to the detective, eventually confessing to actions that amount to aggravated sexual assault.
In Utah, the process of determining whether juveniles are capable of knowingly and voluntarily waiving their rights begins with Utah Rule of Juvenile Procedure 27A, which governs the admissibility of statements given by minors without a parent or legal custodian present. When the minors are under 14, the presumption is that they are not capable of waiving their rights without a parent figure present under rule 27A(a)(1). Since both minors in this case were at least 14, we focus on rule 27A(a)(2), which states that “if the minor is 14 years of age or older, the minor is presumed capable of knowingly and voluntarily waiving the minor's rights without the benefit of having a parent, guardian, or legal custodian present during questioning.” Only after this determination do we proceed to the totality of the circumstances test to determine whether Miranda rights were validly waived by a minor as outlined in State v. Bybee, 2000 UT 43, ¶ 17, 1 P.3d 1087. This includes considering the following factors:
(5) The minor's ability to comprehend the meaning and effect of his statement,
(6) Whether the police used any coercive tactics in obtaining the waiver, and
(7) Whether a parent, adult friend, or attorney was present.
The Totality of the Circumstances Supports that D.G. Knowingly and Voluntarily Waived His Miranda Rights
First, the juvenile court found D.G. to be 15 years of age. There is nothing about D.G.'s age alone that overcomes his waiver. Additionally, D.G. affirmed that he understood his rights when asked by the detective. The court further found that there was “no evidence that [D.G.] did not understand the Detective,” nor was there any evidence that “he was confused or scared.” D.G. did not provide any evidence to rebut his affirmative statement that he understood his rights.
Second, as to D.G.'s intelligence, the juvenile court found that D.G. had “straight A's in school [and was] an honor student.” The court also found that D.G. was of “above average intelligence.” Nothing from these findings weighs against D.G.s ability to intelligently waive his rights.
Third, when considering education, the juvenile court found that D.G.'s education level was “appropriate for his age” and there was no evidence that “he ha[d] any learning or mental disabilities.” D.G. also “read at a ninth grade or even higher level.” These facts do not give any cause for concern regarding D.G.'s education that would weigh against his ability to knowingly waive his rights under the totality of the circumstances test.
Fourth, the juvenile court found that D.G. had no prior experience with law enforcement or the court system. While this weighs against his ability to knowingly waive his rights, this factor alone is not enough to overcome the weight of the other factors that indicate a valid waiver.
Fifth, as to D.G.'s ability to comprehend the meaning and effect of his statements, the juvenile court also found that D.G. “understood his rights.” Additionally, there is no evidence that during the interview D.G. was scared or confused or felt intimidated in any way so as to impair his comprehension.
Sixth, no coercive tactics were used by the officer during the interview. The juvenile court found that the detective asked D.G. questions to be sure he understood his rights. Specifically, the detective asked D.G. “Do you understand those rights?” “Does that make sense?” “Can I let you know why I'm here? You want to talk to me, tell me what is going on?” The detective also informed D.G. that he could stop answering questions at any time and request an attorney at any time during the interview. Additionally, the detective told D.G. that he was not telling him his rights “to make him scared” and that he was not under arrest. We find no evidence in the record that any intimidation tactics or coercion by the detective would invalidate D.G.'s waiver. The interview was relatively short and occurred at a place that was familiar to D.G.7 There was no evidence of any threats or promises in exchange for speaking to the detective.
Last, we consider the fact that D.G. did not have a parent, legal guardian, or attorney present during the interview with the detective. D.G. did not ask for a parent or attorney to be present during the interview even though D.G. was informed he could have an attorney present. As we have previously stated, “while the presence of a parent or an attorney is a factor that should be considered by the court, it is not determinative, and the lack thereof does not make the waiver invalid per se.” … This is only one factor to consider among the other factors.
The state met its burden of showing that the waiver was knowingly, intelligently, and voluntarily given in this case. D.G. did not offer adequate evidence that would counter a finding that he knowingly and voluntarily waived his rights. Considering the totality of the circumstances including D.G.'s age, intelligence, ability to comprehend the questions asked by the detective after giving the Miranda warnings, and lack of coercive tactics used by the detective, we hold that the Miranda warnings were sufficient.
Further, D.G. did not “overcome by a preponderance of the evidence” the presumption in rule 27A that D.G. is “capable of knowingly and voluntarily waiving [his] rights without the benefit of having a parent, guardian, or legal custodian present during questioning.” Utah R. Juv. P. 27A. The juvenile court did not err in denying D.G.'s motion to suppress his post-Miranda statements to the detective.
The Totality of the Circumstances Support that R.G. Knowingly and Voluntarily Waived His Miranda Rights
First, the juvenile court found that R.G. was 15 years of age, and that “the law clearly provides that a juvenile 14 or older can be interviewed without a parent,” … Accordingly, without further evidence to the contrary, R.G.'s age by itself does not overcome the finding by the juvenile court that his Miranda waiver was valid.
Second, as to R.G.'s intelligence, “all the evidence would indicate that R.G. is of average intelligence.” No evidence was presented to indicate that he had any learning disabilities or was failing any classes. Nothing about R.G.'s intelligence weighs in favor of invalidating his Miranda waiver.
Third, we consider R.G.'s education. All evidence indicates that he has the “appropriate education level of a fifteen-year-old.” There is nothing in the record to indicate that he is in any resource or special classes or that there is any cause for concern regarding his education level.
The fourth factor is R.G.'s experience with law enforcement or the court system. R.G. has had no prior experience with law enforcement or the court system. However, this alone does not outweigh the other factors that favor a holding of validity.
Fifth, as to R.G.'s ability to comprehend the meaning and effect of his statements, the juvenile court found that R.G. “understood his rights.” There is no evidence that R.G. was confused or scared during the interview. As the juvenile court found, R.G. answered the detective's questions affirmatively, that he understood his rights, and that he indicated that he wished to speak with the detective.
Sixth, no coercive tactics were used by the officer during the interview. The juvenile court found that the detective asked R.G. four questions to be sure he understood his rights. Specifically, the detective told R.G.
The law makes sure and requires me to tell you what your rights are, okay? Not to scare you. It doesn't mean you're under arrest. You're not going anywhere. The law just says if I want to talk to you, I just have to tell you that, I'm required to do that. So that's what I'm going to do first, okay?
Then after giving the Miranda warning, the detective asked, “Do you understand those rights?” “Having those rights in mind, can I talk to you?” “Do you want to talk to me?” Nothing in the record indicates that the detective threatened R.G. in any way.
Seventh, we consider the fact that R.G. did not have a parent, legal guardian, or attorney present during the interview with detective. R.G. did not ask for a parent or attorney to be present during the interview even though R.G. was informed he could have an attorney present. The state also met its burden of showing that the waiver was knowingly, intelligently, and voluntarily given in R.G.'s case. R.G. did not provide evidence that would counter a finding that he knowingly and voluntarily waived his rights. Considering the totality of the circumstances including R.G.'s age, intelligence, ability to comprehend the questions asked by the detective after giving the Miranda warnings, and lack of coercive tactics used by the detective, we hold that the Miranda warnings were sufficient.
Click here for the complete decision.