Opinion
Criminal Action No. 2004-10365.
March 24, 2006.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
The defendant, Linrose Woodbine, has been indicted for first degree murder and related offenses in the shooting death of Aston Dwayne Thompson. He now moves to suppress statements made to detectives of the Boston Police Department on or about December 16, 2003. After a hearing, and for the reasons stated below, the defendant's motion to suppress is ALLOWED in part, and DENIED in part.
FINDINGS OF FACT
On December 15, 2003, shortly before 10:00 p.m., Boston police officers responded to the area of 37 Wales Street, Dorchester, Massachusetts. There they discovered Thompson with gunshot wounds. He was transported to the hospital where he died.
The defendant was located in the vicinity of the area where Thompson had been shot. He was found hiding under a porch. He had been shot in the thigh, and had suffered a substantial loss of blood. He was cold and in pain, having been lying in the snow for some period of time. The defendant was placed into an ambulance, where Sergeant Detective Daniel Keeler read him his Miranda warnings from a card. The defendant was then transported to the Boston Medical Center ("BMC"). While in the ambulance, the defendant appeared to be oriented and responsive, both to police officers and the EMTs.
Keeler has investigated as many as five hundred homicides, has interviewed over one thousand suspects, and is familiar with the requirement of administering Miranda warnings.
The defendant arrived at the BMC's trauma center at 11:29 p.m. Although his skin was noted to be cold to the touch, he was viewed as oriented, alert, and able to follow commands. The defendant, who was complaining of pain to his right thigh and buttocks area, received treatment to his wounds. By 1:30 a.m., he was admitted to the hospital, and throughout the early morning hours of December 16, 2003, he was complaining of pain being at a level 8 on a scale of 0 to 10. He was also described as very anxious. At about 3:00 a.m., he was prescribed Percocet.
The defendant remained at the BMC until his discharge on December 22, 2003.
The defendant did not require surgery.
While the defendant was still in the emergency room, Sergeant Keeler, Detective Windell Josey and Detective Steve O'Brien visited with him after being informed by the nurse on duty that they could do so. Detective Josey testified that Sergeant Keeler recited the complete Miranda warnings to the defendant from memory, and, despite the absence of corroborating evidence and some conflicting evidence concerning the circumstances relating to this early morning visit to the hospital, this Court credits Josey's testimony. The record is clear that the defendant indicated that he did not want to talk to the police at that time. The defendant was in considerable pain, and had difficulty speaking without grimacing. Nevertheless, he appeared responsive to both Keeler and Josey and subsequently to O'Brien who obtained some identification information from the defendant after Josey and Keeler had finished speaking with him.
Keeler does not recall going to the hospital in the early morning hours of December 16, 2003. Moreover, Josey testified that he traveled with Keeler to the BMC, but O'Brien testified that he traveled with Keeler to the hospital and that Josey was already at the hospital when he and Keeler arrived. O'Brien initially was outside of the curtained off area where the defendant was located, and consequently did not hear the Miranda warnings given by Keeler. While Josey claimed that he recalled all of the warnings having been given, he was unable to recall other specifics regarding the conversation with the defendant, including whether Keeler inquired of the defendant after each warning whether the defendant understood that warning. Indeed, Josey admitted that he could not recite verbatim what was said during the conversation with the defendant. Josey acknowledged that he has heard or participated in the administration of Miranda warnings in the last two years between 50 and 100 times, and does not recall the details of each of those instances. Finally, as discussed below, Keeler does not consistently include each of the requisite warnings when he recites them from memory.
At about 5:00 p.m., on December 16, 2003, Keeler returned to the BMC to speak with the defendant. This time he was accompanied by Detective Jack Callahan. Keeler received permission from a nurse to speak with the defendant. The detectives went into the defendant's room, which was being guarded by a police officer, and advised the defendant that a warrant had issued against him and that he was going to be charged with murder. Keeler then recited the Miranda warnings, again from memory. On direct examination, Keeler recited the complete warnings which he testified he had given to the defendant. He also testified that the defendant acknowledged that he understood each of his rights. When asked on cross-examination to recite the Miranda warnings from memory, Keeler omitted that a suspect has a right to remain silent and that if the suspect waives the right to remain silent anything he says can be used against him. He further suggested that it was acceptable to omit the warning concerning the right to remain silent because it was "somewhat synonymous" with the right to stop answering questions at any time. Nevertheless, based on Keeler's considerable experience, his testimony on direct examination, the circumstances surrounding the initial recitation of the warnings on the evening of December 16, 2003, and the defendant's acknowledgment during the subsequent taped statement that he had received his rights, this Court credits Keeler's testimony that complete and accurate warnings were given to the defendant prior to his unrecorded statement.
Detective Callahan did not testify at the hearing on this motion. Moreover, it appears that Detective Callahan had been at the hospital at approximately midnight, because he took photographs of the defendant at that time in a bed receiving oxygen and attached to intravenous tubes.
The defendant was upset and crying. Keeler told him that he was in "a heap of trouble," and that the police believed that there was more than one person responsible for the shooting. He also told the defendant that there are "always two sides to every story, and it was best to get his side out."
Following a brief conversation, the specifics of which Keeler could not recall, the defendant indicated that he wanted to speak to Keeler alone. Callahan was asked to leave the room and did. Keeler continued to talk to the defendant, expressly avoiding the use of a tape recorder. The defendant then asked Keeler how much trouble he was in, and stated that Keeler did not understand "these guys, they'll kill my family, I've got family." He was clearly deeply concerned that cooperating with the police would put his family, located in both New York and Florida, in jeopardy. Keeler assured the defendant that the police would deal with that, although he did not have enough information at the time to be more specific. The defendant eventually made a statement regarding the shooting and the circumstances before and after that event.
At the time, Keeler's policy was to avoid bringing a tape recorder to an interview because of the purported "chilling effect" it had on the individual being interviewed.
After the defendant indicated that he had been truthful and had said all that he wanted to say, Keeler said that he wanted to record the defendant's statement. Callahan returned to the room at some point prior to the taping. At approximately 5:25 p.m., the detectives began recording an interrogation of the defendant. The defendant became emotional and was crying. He stated that he was not ready, and Keeler stopped the tape. Within a matter of minutes, Keeler told the defendant that they should get the taped interview done, and the tape was started up again. The entire tape-recorded conversation lasts approximately twenty-three minutes. After the defendant identified himself, and after Keeler reviewed the fact that he had previously advised the defendant that the police had a warrant charging him with murder, Keeler stated:
Ok. And Linrose, I also gave you your rights, which I'd like to go over just again if I could. Uh, the right to remain silent; the right to have an attorney with you during questioning, uh, if one, if you could not afford an attorney one would be appointed for you at no cost to you by the Commonwealth; and uh, I told you you had a right to stop answering questions if you wanted to. Is that correct, Linrose?
Keeler did not inform the defendant that anything he said could be used against him.
Immediately following Keeler's incomplete statement of the Miranda warnings, the defendant stated: "Yeah. Ok. Where is that, where is the lawyer?" Keeler responded incredulously, "Where is the lawyer?" The defendant said "Yeah," and the following dialogue occurred:
In this transcription of the recorded conversation, Sgt. Keeler is referred to as "K," and the defendant as "W."
K: Well, I told you of your right to have a lawyer if you wanted, right? And did you start crying and say that you wanted to speak with me?
W: Yeah.
K: Would you speak up Linrose?
W: Yeah.
K: Ok. Now I told you (pause); Linrose, look at me for a second if you would? You started crying and said, can I speak with you alone. Is that true?
W: Yeah.
K: Ok. And did we have a conversation?
W: Yeah.
K: Ok. And a conversation in which you said: I'm scared. Is that true?
W: Yes.
K: And you started crying, right?
W: Yeah.
K: Uh, Linrose, you have to speak up because they won't be able to hear you here, and I think it's important that they do hear you, ok?
W: (inaudible)
K: Would you speak up please?
W: Ok.
K: Now, Linrose, you're the one that told me you wanted to speak with me, is that correct?
W: You were talking to me and I said, I'd like, that I'd feel comfortable if you would talk to me, me and you alone.
K: Me and you alone. We did have that conversation, right? Now, Linrose, during that conversation when you said to me, uh, can you tell me how much time I'm gonna do? Is that correct?
W: (inaudible)
K: You have to speak up Linrose.
W: Yeah.
K: Ok. Linrose, I told you, I wouldn't, I wouldn't be able to tell you that, isn't that fair? That I wouldn't, that I couldn't give you a number, but I said if you wanted to talk, and you wanted to be truthful about what you said, I would tell the district attorney that you wanted to cooperate, and that you wanted to speak about what happened last night. Is that fair?
W: Yeah.
K: Could you speak up please?
W: Yes.
K: Ok. And as a result of that conversation, right, uh, I then, invited Detective Callahan into the room, right?
W: Yeah.
K: And you said to me, you don't know [w]hat they'll do. They'll kill my mother. I have relatives in Florida. I have relatives in New York. You have no idea how dangerous these people are. Is that fair?
W: Yeah.
K: And throughout this, even when we were talking prior to going on tape, uh, you've constantly been in tears, worrying about your mother, right?
W: Ok.
K: Worrying about her safety, right?
W: Yeah.
K: Ok. Um, and I told you that we'd take the necessary steps to protect anybody? Is that true?
W: Yeah.
K: Ok. Linwood, I want to bring you back to kind of how this occurred, ok, if I could? Is that fair?
W: (Pause) I guess, yeah.
At that point, Keeler proceeded, through a series of leading questions, to obtain the defendant's description of the events leading up to and surrounding the shooting. The detective never inquired of the defendant what he meant by the statement "where's the lawyer?"
During the taped interview, the defendant, who had no criminal record, indicated that he went to "about to the 11th grade" in a high school in Brooklyn, New York. Near the end of the interview, Keeler asked the defendant whether there was anything he did not understand concerning what they had talked about. The following colloquy took place:
K: Honestly you tried your best to really break it down to me and, when we're talking I understand a lot; sometimes, when I'm talking to you, I'm in, I'm in the pain, too, at the same time, I —
W: I understand.
K: — and I'm thinking about, when you're talking to me I'm trying to hear what you're saying —
W: Ok.
K: — but I'm thinking about my family at the same time, and thinking about how I just gave my life away.
W: You're worried about your safety, and you're thinking about how you gave your life away, cause you said to me, I tried my best to break it down to you, to say this was about choices and alternatives that you've gotta make, Ok? I know that this is emotional for you, and I know you're crying. Linrose, let me ask you something, right, just so you understand, I told you we're gonna try to find out who this other guy is, Ok?
K: Yes, sir.
W: And I told you, you've gotta make a decision and, and decide whether you want to accept responsibility, right?
K: Yes, sir.
W: I told you, it was your decision whether you talked to me or not, right?
K: Yes, sir.
W: It was your decision that I, I, I said — you reached that decision when you said to me, I want to talk to you, can we talk alone. Is that right?
K: Yes.
W: And I gave you your rights, right? (Pause.) Linwood, just so everyone understands, just in fairness —
K: (Sobbing)
W: Linwood; Linrose, just in fairness —
K: Yeah.
W: — could you, can you answer that for me?
K: Yeah. (Sobbing)
W: Linrose, I also said to you, right — can you look at me for a second, please — that tomorrow you'd be arraigned here, right?
K: Yeah.
W: And I thought it was advisable that you be honest tomorrow with your attorney, right?
K: Yes.
W: And tell him what we spoke about, right?
K: Yes.
W: Is that fair?
K: Yes.
W: Is there anything that I'm missing, here?
K: I wish I could have spoken to him, before, though.
W: You wish you could have spoken to him before?
K: Yeah.
W: Well let's, let's go over that for a second. Linrose, look at me a second. Just so it's perfectly clear, I don't want anyone at all to misunderstand this, right? When I spoke to you, first came in here today —
K: No, you were, you, you, you, you, you, you were, you treated me with a lot of respect, and you, you showed me a few things. And you, I, I felt like you dealt with me fairly, and I, explained a lot of things to you.
W: But I want it perfectly clear, because, what I have to say to you, involves my reputation as well as yours, Ok? And what I want to be fair with and just be perfectly clear for the record, when I first came in, there were four officers here and I gave you your rights when I told you you were arrested for murder, right?
K: Yeah.
W: And I told you you didn't have to speak with us. And I told you all of your rights that you had, right?
K: (inaudible)
W: Could you speak up please?
K: Yeah.
W: And then you turned to me and you said, can I speak to you alone. Is that right?
K: You came in, and you started talking —
W: Ok.
K: — and I, I also shared something with you which probably we're not going to talk about on this, and that's why —
W: Ok.
K: — I —
W: I want to go over something right now for that's what we're speaking about. There's another matter that you spoke to me, about police officers —
K: Yes.
W: — is that what you're speaking about?
K: Yes.
W: Ok. And I want to tell you and I mentioned that conversation with Detective Callahan; Linrose, a matter that's not related to this, right?
K: Yes.
W: A matter that I told you I was concerned about —
K: Yes.
W: — and that I'm sharing with my superiors.
K: Yes.
W: That will not be swept under the rug.
K: Ok.
W: And I'll tell you something, looking at me. That infuriates me if that is proven to be true.
K: Ok.
W: Ok? But what I want is my reputation and your reputation here, and what occurred in the beginning, Ok?
K: Ok.
W: Just so you understand. I gave you your rights, a couple of times, more than that, right, and I said those are decisions that you make; is that fair?
K: Yeah.
W: Could you speak up?
K: Yeah.
W: Ok. Is that yes?
K: Yes.
W: Ok. And, you know, I just have, I gotta have that crystal clear for everybody; it's you that wanted to speak, and me, and me that said, "Hey, make the decisions on your own, right?"
K: Yeah.
W: (inaudible)
K: Yes, yeah.
W: Linrose, with that in mind, Ok?, with Detective Callahan, here, and, and you in some obvious pain, uh, I'd like to terminate the interview now, if you're comfortable with it. . . .
The parties agreed that the transcript of the tape recorded conversation prepared by the defense is an accurate transcription of that interview for the purposes of this motion to suppress. This Court, of course, has listened to the tape as well.
CONCLUSIONS OF LAW
The Fifth Amendment to the United States Constitution provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436 (1966), "presumed that interrogation in certain custodial circumstances is inherently coercive and . . . that statements made under these circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decided to forego those rights." New York v. Quarles, 467 U.S. 649, 654 (1984). As the Supreme Judicial Court has noted:
The command of Miranda . . . is clear: "He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."
Commonwealth v. Lewis, 374 Mass. 203, 205 (1978), quoting Miranda, 384 U.S. at 479. In Massachusetts, the Court has recognized that the better practice is to give the so-called "fifth warning," i.e., that the suspect has the right to end the interrogation at any time. Lewis, 374 Mass. at 205.
The failure to adequately advise the defendant of each of the separate Miranda rights renders a confession presumptively involuntary. Commonwealth v. Adams, 389 Mass. 265, 268 (1983). It is the Commonwealth's burden to demonstrate that the defendant was fully advised of his rights, and the Commonwealth fails to satisfy that burden when it is unable to show that the defendant was advised that any statements he made could be used against him. Id. at 269; Commonwealth v. Davis, 58 Mass. App. Ct. 412, 416 (2003). In Commonwealth v. Ayala, 29 Mass. App. Ct. 592, 595-596 (1990), the defendant's statements were deemed involuntary as a matter of law where the police officer, who had initially testified in a conclusory fashion that he had recited the Miranda warnings to the defendant, neglected to include the warning that any statement the defendant made could be used against him when the officer subsequently testified as to the precise warnings he gave the defendant prior the statements being made. The Appeals Court noted that the police failure to follow the practice recommended by the Supreme Judicial Court in Lewis, i.e., that the Miranda warnings be read from a card, that the card be given to the defendant, and that a copy of the card be placed in evidence, creates the kind of problem that was present in Ayala and is present in this case. Id. at 596, citing Lewis, 374 Mass. at 204-205. As the Ayala court stated: AMemory may be too thin a reed upon which to hang compliance with the demands of the privilege against self incrimination secured by the Fifth "mendment to the Federal Constitution." 29 Mass. App. Ct. at 596.
Nor can an inadequate warning be saved by the fact that a complete set of warnings was given at the time of arrest unless either there is evidence that there was no break in the chain of events between the time the full warnings were imparted and the flawed warnings were given, or there is evidence that the defendant manifested an understanding of the rights as earlier stated to him. Commonwealth v. Coplin, 34 Mass. App. Ct. 478, 481-483 (1993). Moreover, the Supreme Judicial Court, in Commonwealth v. Vuthy Seng, 436 Mass. 537, 547 (2002), held:
We conclude that where two sets of warnings are given and one is defective or incomplete and the circumstances are such that the defendant would be confused by the discrepancy or omission, a waiver so obtained is not voluntary. See United States v. Garcia, 431 F.2d 134 (9th Cir. 1970). . . . See also W.R. LaFave J.H. Israel, Criminal Procedure § 6.8 (c) (2d ed. 1999).
An assertion of the right to counsel must be scrupulously honored. Commonwealth v. Brant, 380 Mass. 876, 882 (1990). As the United States Supreme Court made clear in Edwards v. Arizona, 451 U.S. 477, 484-485 (1981), a suspect who is in custody and invokes the right to counsel at any time during an investigation may not be questioned further until a lawyer is made available to him or unless the suspect himself initiates further communication. Thus, the Edwards decision does not bar the admission of volunteered statements, nor does it prevent the finding of a subsequent valid waiver initiated by the suspect that would render the statements voluntary. 451 U.S. at 486 n. 9; Minnick v. Mississippi, 498 U.S. 146, 156 (1990); Commonwealth v. LeClair, 55 Mass. App. Ct. 238, 245 (2002), aff'd, 445 Mass. 734 (2006). As the Appeals Court stated in LeClair:
Put another way, "[i]f the police do subsequently initiate an encounter in the absence of counsel . . ., the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards." McNeil v. Wisconsin, 501 U.S. [171, 177 (1991)].
Different considerations apply if the defendant initiates further discussion with police after invoking the right to counsel. "Where the suspect does so, re-interrogation may follow, but `the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.' Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983). Thus, before police may recommence interrogation in these circumstances, they must first obtain from the suspect a voluntary, knowing, and intelligent waiver." Commonwealth v. Sarourt Nom, 426 Mass. 152, 157 (1997).
While the police must stop questioning a defendant who has invoked his rights to an attorney until the attorney is present, "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Commonwealth v. Judge, 420 Mass. 433, 450 (1995), quoting Davis v. United States, 512 U.S. 452, 459 (1994). In Commonwealth v. Jones, 439 Mass. 249, 258-259 (2003), the defendant's statement that he was "going to need a lawyer sometime," was held to be the kind of equivocal statement and musing concerning the need for an attorney that does not constitute an affirmative request for an attorney. Statements such as "I think I'm going to get a lawyer," Commonwealth v. Contos, 435 Mass. 19, 29 (2001), and questions such as "Can I get an attorney right now, man?" Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999), have, however, been deemed reasonably clear invocations of the right to consult immediately with counsel. Although the United States Supreme Court indicated that it would often be good police practice for officers to obtain clarification concerning whether the suspect actually wants an attorney in the face of an ambiguous or equivocal statement, the courts have declined to adopt a rule requiring the officers to do so. Davis, 512 U.S. at 461; see also Judge, 420 Mass. at 450.
Even if complete warnings have been given and the defendant has not asserted his intention to remain silent or desire for an attorney, the Commonwealth has the burden of proving beyond a reasonable doubt that the waiver was voluntary, knowing, and intelligent. Commonwealth v. Gaboriault, 439 Mass. 84, 89 (2003), citing Commonwealth v. Magee, 423 Mass. 382, 386 (1996). The Court must examine the totality of the circumstances surrounding the waiver in determining whether the Commonwealth has met its burden. Commonwealth v. Scoggins, 439 Mass. 571, 575 (2003), citing Commonwealth v. Rodriguez, 425 Mass. 361, 366 (2003). The judge must consider whether there was physical or psychological coercion, and, more particularly, as it applies to this case, whether, because of a defendant's medical condition, the statements are not the product of rational intellect and free will. Commonwealth v. Allen, 395 Mass. 448, 455 (1985). The following factors are relevant: (1) whether promises or other inducements were made by the police to the defendant; (2) the defendant's age, education, and intelligence; (3) his experience with the criminal justice system; (4) his physical and mental condition; (5) whether he was under the influence of drugs or alcohol; and (6) the details of the interrogation, including the recitation of Miranda warnings. Commonwealth v. Scott, 430 Mass. 351, 355 (1999). "The presence of one or more factors suggesting a statement may have been made involuntarily is not always sufficient to render the statements involuntary." Commonwealth v. Selby, 420 Mass. 656, 664 (1995).
"The Commonwealth must also demonstrate beyond a reasonable doubt that any statements made after a defendant waived his rights were voluntarily made." Scoggins, 439 Mass. at 576, citing Commonwealth v. Beland, 436 Mass. 273, 279 (2002). The same totality of the circumstances test that is used to assess the voluntariness of the Miranda waiver is applied to determine the voluntariness of the statements. Id.
Applying these principles to the case at bar, this Court concludes that despite the fact that the Miranda warnings given during the tape-recorded interview were indisputably flawed, the defendant received complete warnings within the half-hour before the taped interview, and that was sufficient to meet the requirements of Miranda. Absent those timely and complete warnings, all of the alleged statements of the defendant would be inadmissible because the warnings given when the defendant was placed into the ambulance and in the early morning hours at the hospital are neither temporally nor circumstantially part of an unbroken chain of events to the interrogation leading to the defendant's statements. The first warnings were given at a time that the defendant, although awake and responsive, had just experienced the trauma of being shot and had been lying in the cold snow for a period of time. He was bleeding and in considerable pain. The warnings received around midnight were given within an hour of the defendant's arrival at the hospital and while he was still in the emergency room. The challenged statements of the defendant of December 16, 2003 were made more than seventeen hours after the initial warnings and fifteen hours after the second warnings.
As noted, although Keeler gave deficient warnings while obtaining a tape-recorded statement and despite that he was also errant in his warnings on cross-examination at the hearing on this motion, this Court has credited his testimony regarding the complete warnings given to the defendant at around 5:00 p.m., on December 16, 2003. Because Keeler's flawed warnings followed close on the heels of the complete warnings and as part of the same interrogation session, the defendant's rights under Miranda were preserved. Nor are the circumstances here such that the defendant would have been confused by the omission such that any waiver would be deemed involuntary. There is nothing in the record, including the recorded statement, which would indicate that the defendant was confused about the fact that anything he said could be used against him.
This case, however, provides an example of why police officers should use the Miranda card when providing the warnings, i.e., to insure that suspects are informed of all of their rights, to avoid the mistakes that can flow when officers rely on their memory, and to enable the courts to have more reliable evidence upon which to determine whether the prosecution has met its burden regarding the Miranda requirements.
The critical issue in this case is whether the defendant made a reasonably clear request for an attorney that was dishonored by the police. This Court finds that when Keeler reiterated to the defendant his right to have an attorney present with him during questioning and that if he could not afford an attorney, one would be appointed for him, and the defendant responded "Ok. . . . where is the lawyer," a reasonable police officer under the circumstances would understand that question as a request for an attorney. Keeler's obligation in the face of this unambiguous and unequivocal request for counsel was to stop questioning the defendant. Rather, Keeler attempted to obfuscate that request, to create ambiguity where none existed. The detective asked a series of leading questions of the defendant, getting him to acknowledge that, after having previously been advised of his right to a lawyer, he had indicated the desire to speak with Keeler. Of course, the defendant's request for counsel should have been scrupulously honored, and the defendant's earlier waiver of that right does not deprive him of the right to counsel once he makes that request.
The evidence in this case is not unlike the circumstances present in the recent case of People v. Adkins, 113 P.3d 788, 791 (Colo. 2005), where the Supreme Court of Colorado found the defendant's statement, "Why don't I have one right now?", made immediately after the defendant was advised of his right to an attorney, to be an unambiguous and unequivocal request for counsel during an interrogation. The Adkins court noted:
In determining whether an accused sufficiently involved the right to counsel, we are mindful that many suspects, given their individual characteristics and the circumstances of the interrogation, may not "request an attorney "in the most sophisticated or legally proper form.'". . . . Because suspects "may not be legally sophisticated or paragons of clarity in their use of language,". . . the Supreme Court in Davis observed that a suspect need not "speak with the discrimination of an Oxford don." 512 U.S. at 459.
The court in Adkins, as this Court here, finds "the timing of [the defendant's] reference to counsel (and [the detective's] non-response) particularly persuasive in concluding that the defendant made an unambiguous request for counsel." 113 P.3d at 793.
Nor does the record in the case at bar disclose that the defendant volunteered information following his invocation of his desire to have counsel present. Keeler proceeded to simply repeat statements that had earlier allegedly been made during the unrecorded interview and to solicit the defendant's response thereto. There is also no evidence of a subsequent valid waiver initiated by the defendant. Accordingly, the tape-recorded statements made after the defendant requested an attorney must be suppressed.
After the defendant indicated his desire to have counsel and Keeler ignored that request, Keeler attempted to return to the subject of the shooting, and asked, "is that fair?" The defendant paused, and said "I guess, yeah."
Indeed, the record suggests the opposite. When Keeler, near the close of the taped interview, seeks to obtain the defendant's acknowledgment that he had previously told the defendant to be honest with his attorney the next day, and asks whether he was missing anything relating to their prior conversations, the defendant responded "I wish I could have spoken to him before, though." Rather than attempt to clarify whether the defendant was reiterating his right to counsel, Keeler carefully avoided the issue. Compare LeClair, 55 Mass. App. Ct. at 245 (subsequent statement to police "evinced a desire for a more generalized conversation at least sufficient to permit further inquiry about whether the defendant continued to stand by his earlier invocation of his right to counsel.")
With respect to the statements made before Keeler commenced his tape recording of the interrogation, the Commonwealth has met its burden of proving beyond a reasonable doubt that the defendant's waiver of his Miranda rights was voluntary, knowing, and intelligent. By all accounts, the defendant, although in the hospital recovering from a gunshot wound, was oriented, responsive, and not exhibiting any level of confusion. Although the defendant continued to be in pain, and was clearly emotional during his conversations with the police, his responses were appropriate and evidenced an understanding of what was being said to him. The medical records entered into evidence also reflect that although he was experiencing pain, he was fully oriented. Indeed, by the time this interrogation took place, some eighteen hours had passed from the time that the defendant had been shot.
While the fact that the defendant did not graduate high school and lacked experience with the criminal justice system, as well as the nature of the interrogation, may have contributed to the fact that the defendant responded to further interrogation after requesting counsel, there is no evidence that those factors caused his earlier unrecorded statements to Keeler to be the product of an involuntary waiver. Rather, the evidence suggests that it was the defendant who indicated a desire to speak with Sergeant Keeler privately, apparently motivated by his concern for the safety of his family and his desire to keep his cooperation with the police secret. The Commonwealth met its burden of proving beyond a reasonable doubt that the defendant made a voluntary waiver of his rights until the point at which he requested an attorney.
Applying the same totality of the circumstances test to determine the voluntariness of the statements, as distinguished from the voluntariness of the Miranda waiver, for the same reasons as discussed above, the record reflects that the defendant's statements were voluntarily made, at least with respect to those statements made before the tape recording occurred.
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant Linrose Woodbine's motion to suppress statements is DENIED as to any statements made by the defendant to the police prior to the tape-recorded interview on December 16, 2003, and ALLOWED as to the statements made during the tape-recorded interview on that same date.