State v. Cabrera

Full title: STATE OF DELAWARE v. LUIS G. CABRERA, Defendant

Court: Superior Court of Delaware, New Castle County

Date published: Dec 19, 2000

CRIMINAL ACTION NUMBERS IN-99-04-0314 through IN-99-04-0319, ID No. 9904019326 (Del. Super. Ct. Dec. 19, 2000)

Opinion

CRIMINAL ACTION NUMBERS IN-99-04-0314 through IN-99-04-0319, ID No. 9904019326.

Submitted. October 18, 2000.

Decided. December 19, 2000.

Upon Motion of Defendant to Suppress GRANTED

Ferris W. Wharton, Esq., State Prosecutor and Steven P. Wood, Esq., Chief Prosecutor, New Castle County, Department of Justice, attorneys for State of Delaware.

Anthony A. Figliola, Jr., Esq., of Figliola Facciolo, and John P. Deckers, Esq., of Wilmington, Delaware, attorneys for defendant Luis G. Cabrera.

HERLIHY, Judge

MEMORANDUM OPINION

Defendant Luis Cabrera stands indicted, along with Luis Reyes, for the January 1996 murders of Brandon Saunders and Vaughn Rowe. Their bodies were discovered in Rockford Park in Wilmington resulting in this case being known as the Rockford Park murders. Cabrera has moved to suppress a statement about these murders which he made to the Wilmington Police on April 8, 1997. At the time he gave the statement, he was under arrest for an unrelated murder committed in 1995.¹ This Court concludes Cabrera's Fifth Amendment right to counsel was violated under the circumstances he made his statement and must be suppressed.

1 He has since been convicted of that murder and is serving a life sentence.

FACTUAL BACKGROUND

Sgt. Mark Lemon was and is the chief investigating officer of the Rockford Park murders. Sgt. Clayton Smith and Det. Ralph Collazo were the investigating officers for the 1995 murder of Fundador Otero. While the exact date is not part of the record in this case, sometime prior to April 8, 1997, Sgt. Smith and Det. Collazo had obtained a warrant for Cabrera's arrest for the Otero murder.

Late in the afternoon on April 8, 1997, the Pennsylvania State Police called the Wilmington Police to say they had Cabrera in custody at their Media barracks. Since they were involved in a search for an escapee, the Pennsylvania State Police asked the Wilmington Police to come quickly to Media. No warrant had been issued as of this date for the Rockford murders, but Sgt. Lemon described Cabrera, as of April 8^th, as a "strong suspect."² Sgts. Smith and Lemon and Det. Collazo left promptly and took no recording devices or rights' advice forms with them. No recording devices were sought when the officers arrived in Pennsylvania. Since Cabrera did not testify during the suppression hearing, the record about the meetings and conversations with Cabrera in Pennsylvania consist of the officers' suppression hearing testimony.

2 Suppression Hearing Transcript (May 4, 2000) at 5.

Even though Cabrera was under arrest for the Otero murder, Sgt. Lemon went along because he intended to question Cabrera. When the three Wilmington Police officers arrived at the Media barracks, they discussed who should first talk to Cabrera. Sgt. Lemon wanted to go first, which initially Sgt. Smith opposed. He testified about their conversation in this way:

Q. And so, therefore, you didn't think it was a good idea for Lemon to go in first?

A. Not that I didn't think it was a good idea. I just thought we should have gone first.

Q. Okay. But, as the supervisor, what changed your mind? Why did you allow Lemon to go in first?

A. As a supervisor, I knew we had already-we had warrants already. We had a codefendant's confession in the Otero case, so I didn't want to-I thought it was better not to agitate him in the Otero case and give him a shot at it before the Rockford Park homicide to see what he could get in the way of confession or whatever from him.

Q. Maybe I'm confused now.

A. Okay.

Q. Are you now saying you did agree with Lemon or did you not just previously testify that you thought the Otero incident should go first? A. Originally, I did say I didn't think it was a good idea originally for him to go first and I told him that, but then I thought about it and then I said to myself-I never told these guys or him that-I thought to myself since we already have warrants for the Fundador Otero case, it wouldn't hurt, because Detective Lemon is an aggressive investigator. He had been waiting a long time to get a lead on the Rockford Park case. And the Rockford Park homicide, he had been working for a long time, so I thought it wouldn't hurt for him to go first because if there was anything to gain, he should be getting the first opportunity.

* * *

Q. And you did know he had been investigating the case and the leads were very scant; correct?

A. That's correct.

Q. As a result of all that and the fact he had been investigating and it was sort of frustrating perhaps for him —

A. Frustrating, yes, I guess that would be all right.

Q. And based upon all of those things and based upon his aggressiveness, he convinced you to let him go first?³

3 Suppression Hearing Transcript (April 28, 2000) at 43-46.

Sgt. Lemon, as agreed in this conversation, went first into the room where Cabrera was being held where he introduced and identified himself. "I told him I was investigating the Rockford Park homicide, that I needed to speak with him about that."⁴ He probably also mentioned the victims' names. Sgt. Lemon also told Cabrera that two other detectives were coming in to speak to him about the Otero case. He then left the room believing Cabrera would speak to him about the murders. But, the record is unclear, at best, about what Cabrera said or did to lead Sgt. Lemon to believe that he wanted to talk about the Rockford Park murders. Initially on direct, Sgt. Lemon said Cabrera said he would talk to him about the murders:

4 Id. at 94.

A. After I said, that, I paraphrased that he would be willing to talk about that.

Q. What-I don't understand your answer. What did the defendant say?

A. He would be willing to talk about Brandon Saunders and Vaughn Rowe and that's how I left it.

I left the room.⁵

5 Id. at 97-98.

But, on redirect examination by the prosecutor, Sgt. Lemon said:

Q. Detective Lemon, you testified on Thursday, and I think you might have repeated again today, that in Pennsylvania you had two separate conversations with the defendant; is that correct?

A. Yes, sir.

Q. One was before Detectives Collazo and Smith went into the interview room, and one was after; is that right?

A. Yes, sir.

Q. During which of those conversations was it that the defendant told you in one way or another that he wanted to talk to you about Rockford Park?

A. The second one he actually volun-gave me the impression that he wanted to talk, sir.

Q. How about during the first conversation?

A. I had a feeling that he might want to speak about it also.

Q. What was the source of your feeling?

A. Just-just the way he looked at me when I told him why I was there.⁶

6 Suppression Hearing Transcript (May 4, 2000) at 38-39.

The record is undisputed, however, that Sgt. Lemon, in his first session with Cabrera, did not give Cabrera the warnings mandated by Miranda v. Arizona. ⁷ He was in with Cabrera for only a few minutes, perhaps no more than three to five. He left and reported to Sgt. Smith and Det. Collazo.

7 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

These two then went in to see Cabrera. After introducing themselves,⁸ Sgt. Smith gave Cabrera his Miranda rights, which Sgt. Smith said he understood.⁹ Cabrera started to answer the officers' questions. Sgt. Smith, however, became annoyed with the answers and told Cabrera so. He then told Cabrera the police had a statement from Luis Reyes implicating Cabrera in Otero's murder.¹⁰ Sgt. Smith told Cabrera he was talking "nonsense"¹¹ and wanted only to know Cabrera's involvement. Sgt. Smith testified at the hearing that Cabrera then said he did not want to talk about that. He interpreted this statement as Cabrera's invocation of his right not to speak. Sgt. Smith could not recall, however, during his testimony that Cabrera may have also said he wanted to speak to a lawyer. Sgt. Smith did not note in his report or make any record which right was invoked. When he and Det. Collazo left the room, he reported to Det. Lemon what had happened.

8 Cabrera already knew Det. Collazo because he had threatened to make a complaint to Internal Affairs about him concerning something that had happened earlier in the Otero investigation.

9 There is no claim that Cabrera was under the influence of drugs or alcohol or was in any way mentally impaired.

10 It is the same Luis Reyes who is a codefendant in both cases.

11 Suppression Hearing Transcript (April 28, 2000) at 28.

Det. Lemon testified, however, that upon leaving Cabrera, Sgt. Smith informed him that Cabrera asked for an attorney. When he was informed of this, Sgt. Lemon placed a call back to Delaware to speak to a prosecutor in an attempt to learn what he could or could not do. Neither of the ones he called were immediately available. But, Sgt. Lemon initially believed, apparently, that Cabrera had invoked his right to counsel in connection with both cases, since whatever was Cabrera's earlier expressed desire to talk about the Rockford Park case, he assumed, was withdrawn. Within a period of only a few minutes, he went back into the room where Cabrera was being held. Sgt. Lemon wanted Cabrera "just" to know why he was there.¹² Sgt. Lemon described what he did and said:

12 Suppression Hearing Transcript (May 4, 2000) at 13.

A. I basically did the talking. I explained to him that I was investigating the Rockford Park homicides, Saunders and Rowe. I explained to him a little bit of the evidence that I already had.

Q. In particular, do you remember what you told him about the evidence?

A. I told him that I had a gun that was found in his father's home that matched the projectile that was found in the-one of the victim's head.

I told him that I also found a bed sheet that was similar to the one that covered the two victims in Rockford Park.

I believe I also mentioned something about the pager that was located or that was found [that Cabrera had returned it to the pager company a week or so after the bodies were found].

And then I explained to him that he was kind of in a jam.

Q. Did you ask him at that point in the conversation, did you ask him any questions about the crime?

A. Never asked him any questions about the crime at that point.

Q. Did you engage in any discussion with the defendant about anything at that point?

A. We talked about his daughter. I was aware that he had a child and expressed to him being he was in a jam, it may be in his best interest that he might want to talk about this, that the child might not want to see-might not want to grow up knowing the kind of person his father was, things of that nature.

Q. While this conversation was occurring, your thought was that the defendant remained willing to speak with you without the assistance of counsel about your case, but didn't want to speak to Sergeant Smith and Detective Collazo about their case; is that right?

A. Yes.

Q. Did you do anything to make sure that your understanding of the defendant's wishes was correct? Did you do anything to find out whether it was true that he wanted to talk about your case, but not with the others about their case?

A. He expressed with me just sitting there talking about his daughter he wanted to get some things off his chest about this incident, about the Rockford Park.¹³

13 Suppression Hearing Transcript (April 28, 2000) at 103-104.

When Sgt. Lemon was asked why he told Cabrera about the evidence and told him he had some problems facing him and then discussed his daughter, Sgt. Lemon said, "Well I wanted him to think about it."¹⁴ He did not ask him, however, any questions. Nor, on the other hand, during the entire second visit with Cabrera, did Sgt. Lemon give Cabrera his Miranda rights in connection with the Rockford Park murders. While still talking to Cabrera, one of the prosecutors returned Sgt. Lemon's call and he left Cabrera to take the call. He was instructed not to ask any questions and upon returning to Cabrera told him he was not allowed to ask any questions. Estimates offered at the suppression hearing varied about the total time Sgt. Lemon was with Cabrera on this second occasion, both before and after the call. They ranged from ten to thirty minutes.

14 Suppression Hearing Transcript (May 4, 2000) at 13.

Shortly after this, the three police officers left the Media barracks with Cabrera to go to a local magistrate for an extradition hearing. Sgt. Lemon said there was no "direct"¹⁵ conversation with Cabrera about waiver but he ultimately waived extradition and was brought back to Wilmington. There was no conversation about either case in the car on the trip back, which took 45 to 60 minutes. Cabrera and Sgt. Lemon discussed prowrestling. Sometime, however, before getting back to Wilmington, either while still in Media or on the way back, Cabrera and Sgt. Lemon had a conversation wherein Sgt. Lemon agreed to call the Gander Hill authorities to have Cabrera not housed in the general prison population when taken there later that night.

15 Suppression Hearing Transcript (April 28, 2000) at 110.

When the police returned with Cabrera to the Wilmington police station, he was initially put in a holding cell prior to undergoing the booking process on the Otero warrant. But, the booking procedure which transpired thereafter did not follow the usual steps. First, he was taken from the holding cell in the lockup area where the procedure would normally have occurred and moved to an interview room in the Detective Division on a separate floor. Second, normally, either Sgt. Smith or Det. Collazo would have filled out the booking paperwork, since they were the arresting officers on the Otero warrant. In this case, however, Sgt. Lemon was allowed to do the booking paperwork. This was done because Sgt. Lemon formed the "impression,"¹⁶ apparently again in the lockup area, that Cabrera wanted to talk. He wanted to be there in case he did. Before moving him upstairs to the interview room, however, Det. Lemon testified he told Cabrera he could not ask any questions but he could listen.

16 Suppression Hearing Transcript (May 4, 2000) at 15.

Sgt. Lemon and Cabrera went upstairs to the interview room where their conversation was recorded. Their conversation in the lockup was not. Sgt. Lemon testified little, if anything, about what was said in lockup. But, as the recorded conversation reveals, there was some discussion between the two in the lockup. Cabrera refers to it several times and Sgt. Lemon does not deny it. Unlike what Sgt. Lemon testified at one point in Media that Cabrera said he was willing to talk, the sergeant never testified Cabrera told him in the lockup he was willing to do so. Sgt. Lemon, as noted, only said that he formed the impression Cabrera was willing to do so. There is no testimony or anything in the record that indicates Cabrera initiated that impression or what he did to create it. The record is clear and undisputed, however, that at no time in the lockup was Cabrera given his Miranda rights.

As noted, Sgt. Lemon escorted Cabrera to the interview room to ostensibly, at least, conduct the booking process. There is nothing in the record to show Cabrera initiated the move to the interview room. That interview was videotaped. The current transcript, unfortunately, contains inaccuracies and because of the placement of the microphone, many words are unintelligible.¹⁷ What is undisputed, however, is that at no time during the session in the interview room did Sgt. Lemon verbally advise Cabrera of his Miranda rights or give him a Wilmington police rights form to read and respond to.

17 The poor quality of recording is very disturbing. In listening again to the tape in chambers with the volume turned up, the Court could still not make out a lot of what was said. It is possible that in some other case, the poor recording setup could jeopardize the admissibility of a statement and possibly a whole prosecution. The unintelligible words in the transcript are noted "CU."

At various times during their session, Cabrera said:

A45. I can understand and like I said I hope I'm not, I should say . . . like your word. So we say jam you up. Like I guess what I'm trying to say is then how am I helping you, see what's the point of me actually-actually you know saying if it's not really helping you. It just the (CU), you know (CU) (CU) and I'm going to . . . maybe some . . . something. Like I said I know that you helped me out and I'm willing to, you know like I said, I want a clear slate. I don't know if you have, but I'm saying you told me right now, I'm, you now I'm not trying to make harder on myself. That's definitely, I mean right now, I mean definitely (CU) (CU) (CU) (CU) (CU) (CU). Right now I'm just a bundle of nerves right now and rightfully should be, but what I'm saying is right now what's making it worse of me . . . because right I was willing to give you a little brief, but what I'm saying is and I want you to be honest, (CU) (CU) well why should I say anything that ain't gonna' help you. I mean honestly, forget being a cop. Honestly, what's the purpose "cause I thought it would be helping you out to do something and maybe (CU) (CU) (CU)."

Q46. I don't know, prior to you asking for a lawyer in regards to this particular case, I don't know what you were going to tell me.

A46. Right.

Q47. So I can't answer that question because I have no idea what you would of told me?

A47. Right.

Q48. Um, again, I'm sitting here and I'm listening to you talk, and I can't stop you from talking.

A48. Right.

A5O. And I understand that and ah, like I said I'm not trying to use that, you know against you or using that it's, but what I'm saying is see, when you talked to me downstairs, I had the assumption that, you know it's like, "Okay, I can ask you no questions, but if you decide to tell me or of your own free will." You know that is not, you were reading my rights. You know you're actually going by the law. I freely spoke and to me, I-I can understand and maybe by me doing this, that you're going to have maybe something on paper or my statement that you want to put on file and it was actually like be some type of admittance, and you know (CU) (CU) (CU) (CU), I'm trying to hurry up and get all these preliminaries out the way, and I want to hurry up and do what is rightfully supposed to be done. Okay, right now it's going to be hard enough to me that I got face her. [Emphasis supplied.]

* * *

A56. I do understand, but I didn't-I didn't understand downstairs. You know, but like I said, I'm. . . like I said it's not like I'm going to tell you something that if we was to go in front of a jury or anything. It was, "I ain't never said that to him," you know its not like that, but you know I didn't think that um, you know (CU) to bring a tape because everything's in (CU) (CU) (CU), so but . . . like I said I-I just had, you know I'm just wondering as to. . . like I said I thought was going to probably help-help the process [and] me talking to you like this, and not just words, but just this is going to put on file. Where when it's time, you know?¹⁸

18 Draft Transcript of Statement (April 8, 1997) at 10-11, 12, 14.

The session in the interview room started at 6:48 p.m. and lasted about forty minutes. A lot of that time was spent with Det. Lemon filling out arrest and booking paperwork on the Otero case with no conversation occurring. Several times prior to Cabrera inculpating himself in the Rockford Park murders, Sgt. Lemon reminded him that he had invoked his right to counsel on the Otero case. Usually, it is a reference to "this case"¹⁹ and some body movement directed to the Otero booking paperwork he was filling out. But, Sgt. Lemon never asked if Cabrera had invoked or wished to invoke that right in the Rockford Park case.

19 See, e.g., Q46.

In the context of reminding him about that invocation, Sgt. Lemon told Cabrera repeatedly he could not ask questions but he could listen and could not stop Cabrera from talking?²⁰ All of this was before Cabrera implicated himself. In one instance when mentioning he could only listen, Sgt. Lemon said, "Well there is-there is a tape running. Yes, so anything you've said to me and I've been listening. You know it can be, you know held and-and looked at."²¹ At another point, Sgt. Lemon told Cabrera:

20 See, e.g., Q42, Q48, Q56, Q57, Q60 and Q74.

21 Id. Q54 at 13.

Q57. No, I'd be glad to listen and words are, we're being, it's being monitor this . . . everything that you have said to me and everything I have said to you has been monitor[ed]. So there could be no mistake of what you have-you have said to me and you know what I've been doing so far in terms of copying down things for you. You know filling out arrest report and answering any of your concerns, and definitely explaining to you that, you know you had asked for a lawyer. You have the right to have a lawyer present and you asked for that in regards to this particular case.²²

22 Id. at 14.

Also, before Cabrera implicated himself, in reviewing what was said in Pennsylvania, Sgt. Lemon said, "But again, we-we talked about um, family and things of that nature. We did not talk about details of anything."²³ To which Cabrera responded, "Right."²⁴ Cabrera also²⁵ brought up that he did not know how he was going to face "her" (his daughter); the subject Sgt. Lemon had brought up in Media. Also, prior to his inculpatory statement, Sgt. Lemon reminded Cabrera of the special prison request and that he, Sgt. Lemon had taken care of it:

23 Id Q70 at 17.

24 Id. A70 at 17.

25 See Q50, supra.

Q72. And you had asked me, being that you being arrested for this particular charge that if there was any way possible, that if you went to Gander Hill, which you knew if I somehow could um, assist in getting you into a location that was secure and safe, and isolated, and you asked me that request, um, well not a promise or anything, but just request, and I went and took care, and came back. Told you, I was going to make a phone call, came back and told you that was taken care of. Is that, do you remember that?²⁶

26 Id. at 18.

The closest Sgt. Lemon got to offering any Miranda warnings to Cabrera about the Rockford Park murders appears in this brief exchange:

Q38. But according to constitutional law um, we did have a prior conversation ah, about ah, a case I was investigating and since you had asked for a lawyer on this um . . .

A38. Umhum.

Q39. That carries over, so . . .

A39. Yeah.

Q40. There's nothing I can ask you.²⁷

27 Id. at 9.

Again, the reference to "this," is to the Otero case.

Cabrera several times states his understanding of his invocation of his right to counsel on that case as it might relate to the Rockford Park case:

A31. Actually it's going to be about cause like I said I don't, I still want to talk to you know, and I know you can't ask me no questions, but basically if I decide to, let's just say this, if I still um, you know and like I said this has nothing to do with you, but still I don't want to over-step my boundaries as far as, because like I said I found legal representation. I don't know everything (CU) (CU) I should or shouldn't.

* * *

Q35. And I, and ah, that means you would like to have a lawyer with you ah . . .

A35. Now as far as this concern, definitely, but I do . . .

Q36. But when you say this, "cause when you're pointing to this, you mean these charges that . . .

A36. As far as the . . .

Q37. Sergeant Smith and Detective Collazo?

A37. Right, right, right, right, but as far as you're concerned now apparently they said you can't ask me no questions and we got to abide by that, but . . .

* * *

A40. But if I tell you whatever I tell you, even if it's just a little briefing, you can't ask me anything in detail?

Q41. I wouldn't-I wouldn't ask you anything about anything um, I can tell you what to say or what not to say um, but I will never ask you any questions um, about anything ah . . .

A41. Okay.

Q42. If you talked and I listened ah, like I said I can't ask you anything.

A42. But with me talking and you listening.

Q43. Such as I'm listening to you now?

A43. Listening right now, it will help you out on your case and everything, right?²⁸

28 Id. at7, 8 and 9-10.

Eventually, Cabrera admits to his involvement in both murders. Sgt. Lemon does not question him during Cabrera's lengthy recitation of the circumstances of the murders. When Cabrera finishes, however, Sgt. Lemon makes several statements, the first of which is, "I just want to say you did not have to say that."²⁹ Cabrera agrees with Sgt. Lemon's statement that the latter did not force him to say what he had just said about the murders.

29 Id. Q82 at 27.

Cabrera remarked, after implicating himself, that he only wanted to be cooperative and that it was the only right thing to do. A little while later, Cabrera asked Sgt. Lemon what he was going to do with the information he gave about the murders, "[s]traight up. where are you taking that now."³⁰ Sgt. Lemon's response was that he was going to do what any good police officer would do, follow up. He needed to check on details and check with other people, including Cabrera's attorney. That was said about the consequences, but after the incriminating statement.

30 Id. A88 at 29.

Very shortly after this exchange, the session abruptly ended and Cabrera was taken to Gander Hill to be held on the Otero murder charge.

PARTIES' CONTENTIONS

Cabrera contends that the statement he gave to Sgt. Lemon at Wilmington Police headquarters was taken in violation of his Fifth Amendment right to counsel and Miranda and its progeny, particularly Edwards v. Arizona. ³¹ He also argues that the statement was given involuntarily. For these reasons, he says it should be suppressed.

31 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

The State disputes these contentions. It asserts there were no constitutional violations in the circumstances under which Cabrera made his statement. Further, it claims it was voluntarily given. For these reasons, it says, it is admissible.

DISCUSSION I A

Miranda requires that before a suspect undergoes custodial interrogation, he must be advised of certain constitutional rights. Among those rights of which such a person must be advised are the right to remain silent,³² that anything that is said can and will be used against the person in court,³³ and that the person undergoing interrogation has a right to counsel during the interrogation.³⁴

32 Miranda at 467, 86 S.Ct. at 1624.

33 Id. at 469, 86 S.Ct. at 1625.

34 Id. at 471-73, 86 S.Ct. at 1626-27.

Interrogation under Miranda not only includes express questioning but its functional equivalent.³⁵ That has been defined to mean, "[a]ny words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police know are reasonably likely to elicit an incriminating response from the suspect."³⁶ The focus of the last part of that definition is on the perceptions of the suspect.³⁷ A waiver of one's Miranda rights must be knowing, intelligent and voluntary.³⁸ The State must prove waiver by a preponderance of the evidence.³⁹ The determination of whether Cabrera waived his rights requires an examination of the totality of the circumstances.⁴⁰

35 Rhode Island v. Innis, 466 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

36 Id. at 300-01, 100 S.Ct. at 1689.

37 Id. at 301, 100 S.Ct. at 1690.

38 Fare v. Michael C, 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197, 212 (1979); Marine v. State, Del.Supr., 607 A.2d 1185, 1195 (1992).

39 Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed 2d 473, 484-85 (1986); Howard v. State, Del.Supr., 458 A.2d 1180, 1183 (1983).

40 Fare, 442 U.S. at 724-25, 99 S.Ct. at 257 1-72; Fullman v. State, Del.Supr., 389 A.2d 1292, 1296 (1978).

In this case, the officers investigating the Otero murder advised Cabrera of his constitutional⁴¹ rights secured under and mandated by Miranda. The completeness and adequacy of that advice is not disputed. Nor is the fact that Cabrera understood his rights and agreed to answer the officer's questions for a brief time. In short, he voluntarily, knowingly and intelligently waived his rights and started to answer questions about the Otero murder. But, shortly after doing so, Cabrera invoked his right to counsel and/or possibly, his right to not answer any further questions.

41 Dickerson v. U.S., 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

When Cabrera invoked those rights, a new set of ground rules came into play. A suspects's invocation of the right to remain silent must be "scrupulously honored."⁴² If, as Sgt. Lemon believed Cabrera had invoked his right to counsel, all interrogation must cease until counsel is provided, unless the suspect initiates further communication.⁴³ If, however, under the totality of the circumstances, a suspect in custody initiates further conversation, after previously invoking the right to counsel, any statement made is admissible.⁴⁴

42 Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.

43 Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885; Deputy v. State, Del.Supr., 500 A.2d 581, 591 (1985).

44 Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).

B

An examination of the totality of circumstances also requires the Court to examine a number of factors. They include the behavior of the interrogators, the defendant's conduct, his age, his experience, his intelligence and all other pertinent factors.⁴⁵ A review of the totality of circumstances in this case reveal a number of things. Without question, Cabrera was in continuous police custody. At most, it appears it was a total of four hours from the time Sgt. Lemon first met Cabrera in Pennsylvania until the events at issue ended at the Wilmington Police station interview room. Sgt. Lemon was in Cabrera's presence on the first occasion for around five minutes. Sgt. Smith and Det. Collazo were with Cabrera for about ten to fifteen minutes. Sgt. Lemon was with Cabrera on the second occasion for about twenty-to-thirty minutes.

The circumstances also show that Sgt. Smith advised Cabrera of all appropriate rights required by Miranda. They also show that during none of the four relevant occasions Sgt. Lemon was with Cabrera did he ever give any advice to him about any of his Miranda rights. Those four occasions are the brief first session and second session in Pennsylvania. the conversation in the lockup and, finally, the session in the police interview room.

The Court finds that Cabrera invoked his right to counsel when talking to Sgt. Smith and Det. Collazo. The basis for that finding is Sgt. Lemon's testimony that Sgt. Smith told him when he came out of the interview room in Media that Cabrera had asked for a lawyer. Sgt. Lemon acted, thereafter, on the belief Cabrera had invoked his right to counsel, including calling a Delaware prosecutor to find out what he should or could do. He also reminded Cabrera, to which the latter concurred in the taped session, that he had invoked his right to counsel.

The suppression hearing record in this case does not show Cabrera's birth date.⁴⁶ The extent of his education is not a matter of record either. Watching the video of the session in the police station shows a reasonably articulate young man. While later convicted of the Otero murder, he was only under arrest for it on April 8, 1997. Whether he has any other police experience prior to that date, with one exception, is not in the record. The exception is that he threatened to report Det. Collazo to Internal Affairs for some incident relating to his investigation of the Otero case. There is no indication or claim of alcohol or drug consumption or any mental impairment on April 8^th.

46 Court records indicate it is November 7, 1969.

While the length of relevant contact between Cabrera and the Wilmington Police was three-to-four hours, he had been in custody in Pennsylvania for an unknown period of time prior to that first contact. There is no evidence, however, that any Pennsylvania police officer in any way discussed with Cabrera anything about the Rockford Park murders.

C

With this initial recitation of the circumstances as a starting point, two analytical approaches are evident in the determination of the admissibility of Cabrera' s statement. Both lead to the same conclusion that the statement is inadmissible. Both start from the same factual premise; Cabrera was in custody at all relevant times.

The first analytical approach reveals a violation of Miranda without reference to Edwards. Cabrera was in custody. Even though Sgt. Lemon's express questioning in Wilmington related to permissible non-incriminatory booking information,⁴⁷ Cabrera, nevertheless, was subjected to the functional equivalent of interrogation about the Rockford Park murders. But, he was never advised of his Miranda rights in connection with those murders. Whatever he said about them, therefore, is inadmissible in the State's case-in-chief.

47 Stanford v. State, Del.Supr., No. 23, 1991, Moore, J. (January 2, 1992) (ORDER).

The totality of Sgt. Lemon's actions in Pennsylvania and back in Wilmington go far beyond mere booking questions. When he first met Cabrera in Media, he introduced himself and explained he was there in connection with the Rockford Park murders. There is no problem with that. But, thereafter, problems start. Somehow, Sgt. Lemon formed the belief that Cabrera was willing to talk to him about the murders. The trouble is that when pressed by the prosecutor about the basis for that belief, Sgt. Lemon said he got an "impression." The impression, he said, was based on Cabrera's facial expression when he explained to him why he was there with Sgt. Smith and Det. Collazo.

If Cabrera's assent to discuss the murders derives from a facial expression, it is inconceivable anything done thereafter or which Cabrera said passes constitutional muster. But, earlier in his suppression hearing testimony. Sgt. Lemon testified Cabrera said in their first meeting that he was willing to talk to him about the murders. But, how did Sgt. Lemon intend to follow up on this alleged express desire to discuss those murders? Obviously, it is presumed, as an aggressive and conscientious investigator, Sgt. Lemon would ask Cabrera questions. To do that, therefore, he needed to give Cabrera his full set of Miranda rights. He never did.

Sgt. Lemon reported to the other two officers that Cabrera was willing to discuss with him things concerning the Rockford Park murders. By agreement, they talked to Cabrera next. Before doing so, however, there was no discussion that (1) those officers would advise Cabrera of his Miranda rights, or, more importantly, (2) if they did, such advice would apply to both murder cases. Neither Sgt. Smith nor Sgt. Lemon testified that any advice to Cabrera would encompass the Rockford Park case. Nor was Sgt. Lemon in the room when the rights were given.

After Cabrera invoked his right to counsel, it is undisputed Sgt. Smith and Det. Collazo "scrupulously" honored his request and ceased all questions. Even though when Sgt. Lemon returned to Cabrera in only a few minutes and did not ask any express questions, the totality of the circumstances show he, however, did not honor that request. He volunteered to Cabrera specifics of his investigation, namely, the ballistics match-up of a bullet in one of the victims to a gun found in Cabrera's father's house, the similarity of the sheets, that Cabrera had returned one of the victim's pagers within a week after the murder. He told Cabrera he had problems and was in kind of a jam.

But, while all that alone is a lot, there is more. There was a discussion wherein apparently Sgt. Lemon brought up Cabrera's daughter and what she might think of her father concerning all of this and what she might think of him growing up. He said to Cabrera that it might be in his best interest to talk about all of this. There was more conversation, perhaps, about Cabrera's family. Knowing he was going back to Delaware to be held on the Otero murder charge, Cabrera asked Sgt. Lemon to have him not housed in the general prison population at Gander Hill. Sgt. Lemon said he would call and make such a request.

After he was advised by a prosecutor that he could not ask questions, Sgt. Lemon told Cabrera that he could not ask him any questions. It appears, however, that Sgt. Lemon did not stop talking to Cabrera after telling him this. Cabrera said nothing at that time. A short while later, Cabrera waived extradition and was returned to Delaware.

Upon returning to Wilmington, Cabrera was originally placed in the lockup. Based on something that transpired there, Sgt. Lemon testified he gained the impression Cabrera wanted to talk. Sgt. Lemon offered no specifics of what happened or what was said in the lockup to lead him to form that impression. Cabrera's statements on video, however, provide a strong clue. He refers to Sgt. Lemon restating in the lockup that he could not ask questions. But, the sergeant also said he could listen, if Cabrera wanted to talk. Sgt. Lemon did not dispute Cabrera when he said this during the taped interview. The Court is convinced, based on Cabrera's video statements, Sgt. Lemon probably said more to encourage Cabrera to talk.

Other things happened that were likely to elicit Cabrera to speak. One was that the normal booking procedure would have been completed in the lockup. Two, either Sgt. Smith or Det. Collazo would have done it. Three, Sgt. Smith kept reminding Cabrera he had waived counsel only on the Otero case. Most importantly, however, on numerous occasions, before Cabrera made his incriminating statement, Sgt. Lemon advised Cabrera he could not question him but he could listen to anything Cabrera wanted to say. While accurate in one sense, it amounts to nothing short of an invitation, if not prodding Cabrera, to speak. At no time during any of Sgt. Lemon's contacts with Cabrera did he advise him of any of his Miranda rights. Subjecting him to this functional equivalent of interrogation, without doing so, violated those rights rendering his statement inadmissible.

D

The second or alternative analytical approach to this case leads to the same conclusion. This approach places this case under the rule announced in Edwards v. Arizona:

[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.⁴⁸

48 Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85.

The record in this case, of course, shows the officers investigating the Otero murder gave Cabrera his Miranda rights. Further, it shows he invoked his right to counsel shortly after they started to interrogate him. They scrupulously honored his invocation of that right and ceased all questioning. Sgt. Lemon was immediately made aware of Cabrera's request for counsel. Thereafter, however, he seemed to treat Cabrera as if he invoked his right to counsel only on the Otero matter. Curiously, while doing so, he viewed it as a bar also to asking express questions about the Rockford Park murders. This is evident from the way he addressed Cabrera at the Media barracks even before he spoke to a Delaware prosecutor who advised him not to ask questions. Yet, Sgt. Lemon said he never believed it necessary to advise Cabrera of his Miranda rights because he never intended to ask Cabrera any questions.

The issue, however, is not whether Cabrera invoked his right to counsel during the interrogation about the Otero murder but not in connection with the Rockford Park murders. The issue is that he invoked it at all.

The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. [Emphasis in original.]⁴⁹

49 McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158, 168 (1991).

Utilizing the Fifth Amendment Edwards' analysis makes Cabrera's statement inadmissible. The case of Arizona v. Roberson ⁵⁰ confirms why. The defendant in Roberson was arrested at a burglary scene. He was advised of his Miranda rights and chose to remain silent and asked for an attorney. Three days later, a different officer sought to question the defendant about a different burglary. Unlike Sgt. Lemon, this second officer was unaware of the defendant's prior request for counsel. But, contrary to what happened here, the second officer gave that defendant his Miranda rights. The defendant waived his rights and gave an incriminating statement.⁵¹ The Supreme Court held that statement was inadmissible.

50 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

51 Id. at 678, 108 S.Ct. at 2096.

Arizona argued before the United States Supreme Court:

[Arizona] contends that the bright-line prophylactic Edwards rule should not apply when the police-initiated interrogation following a suspect's request for counsel occurs in the context of a separate investigation. According to petitioner, both our cases and the nature of the factual setting compel this distinction. We are unpersuaded.

The State in this case makes the same argument.⁵² This Court is equally unpersuaded. Roberson explains why:

52 State's Brief at 16-17. 21.

As a matter of law, the presumption raised by a suspect's request for counsel-that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance-does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.

* * *

Further, to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.⁵³

53 Roberson, 486 U.S. at 683, 686, 108 S.Ct. at 2099-2100.

To get around these strictures, the State repeats the same arguments which Arizona unsuccessfully tried before the United States Supreme Court. It argues that Cabrera's invocation of his right to counsel was offense-specific, the Otero murder.⁵⁴ In making these same arguments, the State here and Arizona in Roberson relied upon the decision in Connecticut v. Barrett. ⁵⁵ In that case, the defendant told the police, after Miranda warnings, that he would not give a written statement unless his lawyer was present but would give them an oral statement. Thereafter, the police obtained an oral statement. The Supreme Court held the police action did not violate the defendant's Fifth Amendment rights because of the express limited nature of the invocation of his right to counsel.⁵⁶

54 State's brief at 18-20.

55 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987).

56 Id. at 529, 107 S.Ct. at 832.

The record in Roberson shows the defendant's invocation of his right to counsel was not limited in that or any way. Accordingly, the Court in Roberson distinguished Barrett's limited invocation holding from the facts before it in that case.⁵⁷ Unlike the record in Roberson and Barrett, the record in this case does not indicate what were Cabrera's exact words when he invoked his right to counsel or that it was unambiguously limited to Otero. The Court has determined, however, that Cabrera did invoke his right to counsel. In Media, at least, Sgt. Lemon treated that invocation as preventing questioning about both the Otero case and his case. He even testified that since he did not intend to ask questions, he did not deem it necessary to give Cabrera his Miranda advice in connection with the Rockford Park murders. Paradoxically, during the taped interview, though he did not engage in express interrogation, he sought several times to get confirmation from Cabrera that the invocation was limited to the Otero case.

57 Roberson, 486 U.S. at 683-84, 108 S.Ct. at 2099.

Edwards and Roberson demonstrate that Sgt. Lemon's efforts to proscribe Cabrera's invocation of his right to counsel are unavailing. As far as the record in this case shows, Cabrera's invocation was not surgical as was the case in Barrett. Even though Cabrera appears to agree in the taped interview that the invocation may have been limited to the Otero case, the context of his "agreement" is more responsive to Sgt. Lemon's statement-of-fact that it was limited rather than clearly, unambiguously responding to a non-rhetorical question.

When the invocation of the right to counsel is unambiguously limited, as in Barrett, the police are under no duty to clarify or interpret.⁵⁸ Further, an invocation of the Miranda right to counsel requires some statement that can be reasonably construed to be an expression of a desire for the assistance of counsel.⁵⁹ The test is not whether the suspect's invocation is ambiguous or equivocal but whether it is unambiguous.⁶⁰ The record in this case is: (1) that there was an invocation of Cabrera's right to counsel, but (2) that the State has not met its burden of showing it was unambiguously limited to the Otero interrogation.

58 Barrett, 479 U.S. at 529, 107 S.Ct. at 832.

59 Davis v. U.S., 512 U.S. 452. 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362, 371 (1994).

60 Id.

But, saying that does not end the inquiry. Sgt. Lemon's revisit with Cabrera in Media came within just minutes after he had invoked his right to counsel. If it were limited to the Otero case, that circumstance, at a minimum, required Sgt. Lemon to advise Cabrera of his rights in connection with the Rockford Park murder, especially since he subjected Cabrera to the functional equivalent of interrogation. Further, even with such a warning, it is doubtful Edwards/Roberson would allow a later statement to be admissible absent initiation of communication by Cabrera. But, even as to that, absent any Miranda warnings at any time from Sgt. Lemon, the statement is inadmissible.

The State cites Brank v. State ⁶¹ for the proposition that the limited invocation rule in Barrett has been adopted in Delaware. While the State is correct that it has, its argument is not advanced in this case. The defendant in Brank was under arrest for driving under the influence. When at the hospital for a blood test, she said she would only do it with the approval of counsel and asked to speak to a lawyer. Later at the police station, she was given Miranda warnings, waived her rights and made incriminating statements. The Supreme Court held, citing Barrett, that her invocation of right to counsel was unambiguously limited and upheld this Court's admission of the statements.⁶²

61 Del.Supr., 528 A.2d 1185 (1987).

62 Id. at 1188.

Whether Cabrera's invocation was limited to the Otero interrogation and not to this case is nowhere near as unambiguous. At a bare minimum, Cabrera invoked his right to counsel in connection with the Otero case. There was no ambiguity about that.⁶³ The State, however, has not shown that Cabrera's invocation was, thus, limited. His responses to Sgt. Lemon back in Wilmington about the invocation being only to Otero must be viewed in the totality of the circumstances. Again, they show police re-initiation of contact, all that Sgt. Lemon said to Cabrera in Media and the constant reminders in the lockup and the interview room of "Can't ask, but do tell."

63 Compare Davis, 512 U.S. at 459, 114 S.Ct. at 2355, in which the Court said:

Invocation of the Miranda right to counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." But 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.

Rather, the suspect must unambiguously request counsel. [Emphasis in original and citations omitted.]

An additional analytical difficulty exists with the State's argument that Cabrera's invocation of his right to counsel was limited to the Otero case. When seeking to conduct custodial interrogation, the police do not have to indicate up front everything about which they intend to question.⁶⁴ Nor is it necessary for a valid waiver for a suspect to have a full and complete appreciation of all the consequences flowing from the nature and quality of evidence in a case.⁶⁵ So, if Cabrera's invocation of his right to counsel, when given, was limited to the Otero case, so were all the Miranda warnings he received, since he was to be interrogated about that case. That means there was an independent duty on the police to advise Cabrera of those rights in connection with the Rockford Park murders. They did not. The State cannot compartmentalize the duty to give rights' advice and any waiver and seek to introduce an incriminatory statement given in violation of Miranda.

64 Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed. 954 (1987).

65 Oregon v. Elstead, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

The State seeks to compartmentalize what happened in this case by citing Ledda v. State ⁶⁶ That case set out several factors to be considered in the determination of whether Miranda warnings must be readministered:

66 Del.Supr., 564 A.2d 1125 (1989).

Several factors must be considered when determining whether Miranda warnings, once given, must be readministered, including the time lapse since prior warnings, change of location, interruptions in interrogation, whether the same officer who gave the warnings also interrogated, and significant differences in statements.⁶⁷

67 Id. at 1130.

The threshold problem with using these factors is that there were not two separate crimes in Ledda. Miranda warnings were given early in connection with a vehicle stop and following an arrest on drug charges at the stop scene. The officer who gave the warnings a short while later at the police station asked the suspect, who needed some clothing for a court appearance, to identify which of several suitcases were his in order to retrieve the clothing. The suspect did. It was the suitcase also containing a large quantity of drugs found at the scene of the original stop.

Here, of course, we have two different officers and two separate murder cases. Without excessive repetition, the record is the Miranda rights were administered by the officers investigating one case but not by the officer investigating the other and he was not present when it was done. Arguably, therefore, Ledda is inapplicable. Assuming it is applicable, however, an analysis of this record utilizing its other tests is unhelpful to the State.

One test is whether the same or different officers gave the warnings when Cabrera invoked his right to counsel after Sgt. Smith expressed frustration with what he termed Cabrera's evasive answers. He told Cabrera he had a statement from Reyes, Cabrera's codefendant in the Otero murder, who is also a codefendant in these murders. Within a few minutes of hearing of Reyes' statement against him and invoking his right to counsel, Sgt. Lemon is back and reciting what he knows in this case and telling Cabrera he is in a jam and has problems. The record does not show, however, if Sgt. Lemon was aware that Sgt. Smith had told Cabrera about Reyes' statement.

Another test is the time lapse from the earlier warnings. The record here is not precise about the time lapse between when Cabrera invoked his right to counsel in Media and later when he incriminated himself. Like the situation in Ledda, it was about two to two and one-half hours, perhaps a bit more. In any event, it was not lengthy. But, there was only a matter of minutes from when Cabrera invoked his right to counsel in Media and when Sgt. Lemon re-initiated contact and subjected Cabrera to the functional equivalent of interrogation. In short, an analysis using the Ledda factors, if anything, mandated re-administration by Sgt. Lemon of the Miranda warnings in Media and certainly back at the Wilmington Detective Division.

On the surface, Sgt. Lemon appeared to respect Cabrera's invocation of right to counsel by repeatedly telling him he could not ask questions. He could listen, he said, however, each time he remarked to Cabrera asking for a lawyer. But, at the same time, while insuring that Cabrera asked for a lawyer in the Otero case, he never sought to find out if he wanted a lawyer for his case. Why "respect" the right to counsel in one case but not the other?

To put it another way, if Sgt. Lemon believed Cabrera had invoked his right to counsel only in the Otero case, why not seek to interrogate about the Rockford Park murders? Such interrogation, of course, would require his Miranda warnings. Despite Sgt. Lemon's testimony that he did not give the warnings because he was not going to interrogate Cabrera, the very strong suspicion lingers that he knew if he did, Cabrera would likely not talk. He was unwilling to take that risk. He knew Cabrera had already stopped talking about a single murder, Otero.

It was Sgt. Smith who gave Cabrera his Miranda rights. But it was Sgt. Lemon who recited inculpatory evidence to Cabrera, told him he was in a jam, injected issues about Cabrera's daughter, booked him on another officer's case and repeatedly urged Cabrera to talk. In this instance, the change in officers from Sgt. Smith to Sgt. Lemon weighs in favor of a need to readvise Cabrera of his rights in connection with the Rockford Park murders. Edwards/Roberson indicate, however, that under the circumstances of this case, where Cabrera did not initiate communication after the invocation, even a fresh set of Miranda warnings would make the statement admissible.

E

Up to this point, the Court has analyzed Cabrera's invocation of counsel under the Edwards/Roberson Fifth Amendment standards. There lingers, however, an issue of whether the existence of the arrest warrant for the Otero murder triggered Cabrera's Sixth Amendment right to counsel. That right attaches after adversarial judicial proceedings have been initiated, such as an indictment, the filing of an information, arraignment, preliminary hearing or "by way of formal charge."⁶⁸

68 Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 LEd. 2d 411, 417 (1972).

That last phrase has, to this Court's knowledge, never been fully defined. When Cabrera invoked his right to counsel for the Otero murder, the only proceeding initiated was the filing of a complaint and the issuance of a warrant.⁶⁹ Cabrera had not yet appeared before the Pennsylvania judge in connection with the extradition proceedings.

69 See Superior Court Criminal Rule 4.

The United States Supreme Court has never decided that the act of obtaining an arrest warrant alone triggers the Sixth Amendment right to counsel. In Edwards, the adversarial judicial proceeding was, as here, an arrest warrant. The Supreme Court found it unnecessary to decide whether a "mere" arrest warrant implicated the Sixth Amendment.⁷⁰ The court, in that footnote, cited U.S. v. Duvall ⁷¹ which held that a complaint to get a warrant and a warrant did not trigger an accused Sixth Amendment's right to counsel.⁷² Since Duvall, a number of other courts have held that the issuance of an arrest warrant is not the type of adversarial proceeding which triggers a suspect's Sixth Amendment right to counsel.⁷³

70 Edwards, 451 U.S. at 482, 101 S.Ct. at 1883, n. 7.

71 2^nd Cir., 537 F.2d 15 (1976).

72 Id. at 21-22.

73 See e.g., U.S. v. Driscoll, 7^th Cir., 59 F.3d 173 (1995); Lomax v. Alabama, 5^thCir., 629 F.2d 413 (1980) (interpreting Alabama law); U.S. v. Garcia, D.C.S.D.N Y 780 F. Supp. 166 (1991); State v. Vitale, Conn. Sup.r., 460 A.2d 961 (1983); Commonwealth v. Smallwood, Mass.Sup.Jud.Ct., 401 N.E.2d 802 (1980); compare Burton v. Cuyler, D.C.E.D.Pa., 439 F. Supp. 1173 (1977) (interpreting Pennsylvania law).

In a later case, U.S. v. Gouveia,⁷⁴ in dicta, the Supreme Court said it had never decided whether the Sixth Amendment right to counsel attaches at the time the arrest warrant was issued.⁷⁵ The issue in that case, however, did not concern the admissibility of any statements after the accused was arrested on a warrant. The issue was more of right to counsel in a prison disciplinary administrative session. Nevertheless, the statement is a clear enough signal, coupled with all the other authorities, that the existence of an arrest warrant alone does not trigger an accused's Sixth Amendment right to counsel.

74 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984).

75 Id. at 190, 104 S.Ct. at 2298.

The Delaware Supreme Court has not addressed this issue, namely, whether the Sixth Amendment right to counsel is triggered when an arrest warrant is obtained.⁷⁶ As a matter of first impression in Delaware, this Court adapts the view that the issuance of an arrest warrant alone does not trigger an accused's Sixth Amendment right to counsel as to police interrogation.

76 See Parson v. State, Del.Supr., 222 A.2d 326 (1966), cert. denied 386 U.S. 935, 87 S.Ct. 961, 17 L.Ed.2d 870 (1967) which speaks of the Sixth Amendment right to counsel upon arrest, there without a warrant, but does not decide the issue. The Parson court, due to the timing of the trial, found Miranda inapplicable. Id. at 333-34.

Assuming, however, the unlikely holding that the Sixth Amendment right to counsel attaches when an arrest warrant is issued and that the arrest warrant for the Otero murder triggered Cabrera's Sixth Amendment right to counsel, the rules change. The Sixth Amendment right to counsel is offense specific.⁷⁷ Therefore, Cabrera's invocation of his right to counsel during the interrogation about the Otero murder was specific to that case. Unlike the Edward/Roberson Fifth Amendment rule, that invocation did not carry over to Sgt. Lemon's actions in connection with the Rockford Park murders.

77 McNeil, 501 U.S. at 175, 111 S.Ct. at 2207.

But, even the offense-specific invocation as to the Otero murder does not provide solace to the State in this case. A comparison of the facts of this case to those in McNeil v. Wisconsin underscores why. The defendant in McNeil was arrested on a robbery charge. After receiving his Miranda warnings, he chose not to answer questions. He was later taken before a court commissioner for preliminary arraignment and bail setting. A public defender was present. Later the same day, a different police officer visited the defendant in jail to discuss a separate murder investigation. Before any questioning, the officer advised the defendant of his Miranda rights. The defendant waived his rights but denied involvement. The same officer returned several days later and again advised the defendant of his Miranda rights; on this occasion he again waived them but then implicated himself.⁷⁸

78 Id. at 173, 111 S.Ct. at 2206-07.

The Court in McNeil held that the defendant's Sixth Amendment right to counsel was not infringed by the separate interrogation on the murder charge. It distinguished between the more prophylactic Edwards Fifth Amendment right and the Sixth Amendment right:

The purpose of the Miranda-Edwards guarantee, on the other hand-and hence the purpose of invoking it-is to protect a quite different interest: the suspect's "desire to deal with the police only through counsel." . . . This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation) an in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the "adversarial relationship" produced by a pending prosecution has yet arisen.) . . . It can be said, perhaps, that it is likely that one who has asked for counsel's assistance in defending against a prosecution would want counsel present for all custodial interrogation, even interrogation unrelated to the charge. . . . But, even if it were true, the likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards. The rule of that case applies only when the suspect "ha[s] expressed" his wish for the particular sort of lawyerly assistance that is the subject of Miranda. ⁷⁹

79 Id. at 178, 111 S.Ct. at 2209.

Assuming, therefore, that Cabrera's invocation related only to the Otero case, he still had a distinct set of rights under Miranda as to the Rockford Park murders. That is where the facts in McNeil and this case materially diverge. In McNeil, each time the officer investigating the uncharged murder case visited the defendant, he gave him his Miranda rights. Sgt. Lemon, as is undisputed, never did that for Cabrera at any time.

Virtually immediately after Cabrera invoked his right to counsel, Sgt. Lemon returned to him. Starting upon his return and throughout this second visit, Sgt. Lemon subjected Cabrera to the functional equivalent of interrogation. What he did has already been reviewed. But, Sgt. Lemon's actions and words back at lockup and then upstairs in the interview room only compounded the error. The capstone was the repeated statement back in Wilmington along the lines "I can't ask you anything, but you can talk."

The fundamental error in this approach in a Fifth Amendment setting as existed with the Rockford Park case is succinctly stated in McNeil:

If a suspect does not wish to communicate with the police except through an attorney, he can simply tell them that when they give him his Miranda warnings.⁸⁰

80 Id. at 180, 111 S.Ct. at 2210.

The record is uncontradicted that no Miranda warnings were given. Cabrera, therefore, had no opportunity to tell Sgt. Lemon he did or did not wish the assistance of counsel, or did or did not want to remain silent. What he said, accordingly, is inadmissible.

F

The Court holds the Edwards Fifth Amendment rule applies. This holding is important because when analyzing the admissibility of a statement under the rule of Edwards, there are two distinct inquiries: (1) did Cabrera actually invoke his right to counsel and (2) if so, did he initiate further communication with the police and knowingly and intelligently waive that right?⁸¹ The first part of that inquiry has been answered. Cabrera unambiguously invoked his right to counsel.

81 Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488, 493-94 (1984); Knight v. State, Del.Supr., 690 A.2d 929, 932 (1996).

Since Cabrera invoked his right to counsel, the second part of the inquiry must be made. That inquiry itself involves two parts. Did Cabrera initiate a conversation or communication with Sgt. Lemon and, if so, did he then intelligently and knowingly waive his right to counsel. The State has not met its burden as to either part of that inquiry.

Further conversations, exchanges or communications which a suspect initiates are "perfectly valid."⁸² But, the totality of the circumstances in this case, however, show that Cabrera did not initiate further conversation with Sgt. Lemon. After Sgt. Smith and Det. Collazo left the room in Pennsylvania, Sgt. Lemon promptly returned. It was not at Cabrera's invitation. What followed lacks in initiation. Sgt. Lemon, who testified he did most of the talking, recited the evidence he had against Cabrera, told him he had problems, that he was in a jam, and sought to "guilt trip" Cabrera by initiating a conversation about his family, especially Cabrera's daughter. He even promised to call authorities at Gander Hill to have Cabrera housed in a more isolated setting when he was taken there later in the day.

82 Roberson, 486 U.S. at 687, 108 S.Ct. at 2101.

Back in Wilmington in the lockup area, Sgt. Lemon reminded Cabrera he could not ask questions but he could listen. There appears to have been more discussed there, too, such as Cabrera could help himself or even help Det. Lemon by talking. Rather than Sgt. Smith or Det. Collazo, which would have been normal procedure, it was Sgt. Lemon who took Cabrera up to the interview room. That was not a normal location to complete the booking paperwork either. There Sgt. Lemon repeatedly said he could not ask questions but he could listen. The repetitious nature of this statement was nothing short of goading Cabrera to say something.

But, it did not stop there. Before he incriminated himself, Cabrera was reminded that Sgt. Lemon had called Gander Hill and had made special housing arrangements. Also, Sgt. Lemon, several times, reminded Cabrera that his invocation of his right to counsel was only as to the Otero case. The Court is satisfied that Cabrera never said in Pennsylvania or in the lockup that he would talk about the Rockford Park murders. It was Sgt. Lemon's impression in their initial brief encounter that he wanted to, at one time based only on a facial expression. But, even more to the point, Sgt. Lemon never testified that Cabrera said or gave him the impression, during their second meeting in Media, that he wanted to talk about the two murders.

It may have been appropriate to introduce himself in Pennsylvania and explain why he was there. It may also have been appropriate to ask straight forward booking questions in Wilmington.⁸³ But even "routine" booking questions can trigger the need to provide Miranda warnings.⁸⁴ Most of Sgt. Lemons' early questions in Wilmington were of the routine booking variety and, in isolation, did not compel Miranda warnings.

83 Mitchell v. U.S., D.C.C.A., 746 A.2d 877, 891 (2000); Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 100 L.Ed.2d 528 (1990).

84 Thomas v. U.S., D.C.C.A., 731 A.2d 415 (1999).

The totality of the circumstances, however, show Sgt. Lemon went far beyond routine booking questions. The session in Wilmington cannot be isolated from the second meeting Sgt. Lemon initiated with Cabrera in Pennsylvania only 1 1/2-2 hours before. What Sgt. Lemon did there compares closely to the same police conduct in Wainwright v. State,⁸⁵ in which the Supreme Court found there to be the functional equivalent of interrogation after the defendant asked for a lawyer. After he did, the detective explained the evidence against him, including a codefendant's statement. While the defendant made no immediate response to this, an hour or so later he made an incriminating statement.

85 Del.Supr., 504 A.2d 1096 (1986).

The Supreme Court described the detective's recitation of the evidence as "a gratuitous and totally unnecessary tactic which was reasonably calculated to elicit a reaction from the defendant."⁸⁶ What Sgt. Lemon did here was no less. But, he compounded it by mentioning Cabrera's daughter and also saying he had problems and was in a jam.

86 Id. at 1103.

Sgt. Lemon said his intent was to get Cabrera to talk.⁸⁷ But, his intent is not relevant. The methodology he used to do it is relevant to whether there was the functional equivalent of interrogation as the primary focus is on Cabrera's perceptions.⁸⁸

87 Sgt. Smith described Sgt. Lemon as frustrated in his investigation because he had been working on it a long time and had been waiting a long time to get a lead which, up to then, was scant. Suppression Hearing Transcript (April 28, 2000) at 44-46.

88 Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90.

There is not a scintilla of evidence that Cabrera initiated further conversation with Sgt. Lemon. He never asked to talk to him or asked to say anything. What he ultimately said was a result of an off-repeated police invitation to speak. An examination of the second session in Pennsylvania, the conversation in the lockup, Sgt. Lemon's taking Cabrera to the interview room and goading him to talk belies any defendant initiation. Cabrera repeated in Wilmington concerns he had about his daughter; a subject Sgt. Lemon brought up in Pennsylvania. He acknowledged Sgt. Lemon had made special arrangements for him at in Gander Hill. He gained the impression that he could help Sgt. Lemon. In short, the State has failed to show Cabrera initiated communication or conversation with the police after he invoked his right to counsel.

Even some of these statements cannot be reviewed as initiation unlike the circumstances in Oregon v. Bradshaw. ⁸⁹ In that case, a suspect was questioned in connection with a fatal traffic accident. Before he was questioned, he was given and waived his Miranda rights. Based on part of what he then said, he was arrested for a minor related offense and readvised of his Miranda rights. The investigating officer explained why he thought the suspect was responsible for the fatal accident. After denying involvement, he asked to consult with a lawyer and questioning ceased. Some time later, he was taken from the police station to a jail some ten to fifteen miles away. On the way or upon arrival he asked what was going to happen to him now. The officer replied:

89 462 U.S. 1039, 103 S.Ct. 2380, 77 L.Ed.2d 405 (1983).

"You do not have to talk to me. You have requested an attorney and I don't want you talking to me unless you so desire because anything you say-because-since you have requested an attorney, you know, it has to be at your own free will."⁹⁰

90 Id. at 1042, 103 S.Ct. at 2833.

But, as Justice Powell, in concurring, said, when the suspect asked his question, the officer gave him, for the third time, his Miranda rights.⁹¹ That never happened in this case.

91 Id. at 1049, 103 S.Ct. at 2837.

While the plurality decision did not cite that fact, Bradshaw is still substantially different than this case. The officer there was reminding the suspect of his invocation of his right to counsel in that investigation, not an unrelated one. Sgt. Lemon, however, reminded Cabrera of his invocation but several times said it was on the Otero case. Further, there was a significant gap in time from when the Oregon suspect asked for counsel until he asked the question which the Supreme Court held to be initiation. Also, the Oregon officer said or did nothing on the trip to the jail and no comment or prodding preceded the suspect's question. Cabrera's statements evidencing some willingness to talk, however, were uttered in the forty minutes of the booking process and, at a minimum, after prodding both in the lockup and in the interview room, and things said in Media. In sum, despite these statements, Cabrera was not initiating communication with Sgt. Lemon.

Assuming, however, that it could be said Cabrera initiated a conversation with Sgt. Lemon, the State cannot meet the burden of showing Cabrera waived his right to counsel before incriminating himself. Here, too, the State has the burden of showing events following Cabrera's earlier invocation demonstrate a knowing and intelligent waiver of the right to counsel.⁹² Doubts about waiver must be resolved in favor of protecting the constitutional claim.⁹³

92 Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 439 (1977); Deputy, 500 A.2d at 590.

93 Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631, 640 (1986); Deputy, 500 A.2d at 590.

There was, of course, no explicit or oral waiver of the right to consult with an attorney before Cabrera implicated himself. Waiver can be inferred, however, from actions or words.⁹⁴ The prosecutor's burden to show waiver is "great."⁹⁵ Waiver is to be determined, also, by examining the totality of the circumstances.⁹⁶

94 North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979).

95 Id.

96 Whalen, 434 A.2d at 1351.

As discussed earlier, several times prior to incriminating himself, Cabrera indicated some willingness to talk. But, by the same token, he never said he was willing to do so without a lawyer. Cabrera also betrayed an insufficient understanding that what he said could be used against him. He speaks of it not being for jury use but for Sgt. Lemons' file. Sgt. Lemon even told him, before he made the incriminating statement, that whatever he said could be "held-and looked at."⁹⁷ This hardly rises to the necessary level of adequately informing a suspect of the consequences of speaking. Cabrera asked, after implicating himself, what Sgt. Lemon was going to do with what he told him. While a defendant need not understand every possible consequence of a waiver,⁹⁸ the waiver still must be made with full awareness of the right being abandoned and the consequences of the decision to abandon it.⁹⁹

97 Draft Transcript of Statement Q54 at 13.

98 Spring, 479 U.S. at 574, 107 S.Ct. at 857.

99 Moran v. Burbine, 475 U.S. 412, 321, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986).

Cabrera had been given all of his Miranda rights in Pennsylvania, including what he might say could be used against him. He had sufficient appreciation of those rights to invoke one. And, he was reminded that he had invoked it in the Otero case. But, when coupled with what else Sgt. Lemon said and did throughout his encounters with Cabrera, the record again shows the State has failed to meet its burden of showing waiver.

Cabrera was reminded again and again that Sgt. Lemon could not ask questions. Sgt. Lemon told him that was so because he had asked for a lawyer. But, in constantly saying he could listen to what Cabrera said, on the other hand, he undermined the need to insure Cabrera appreciated the consequences of speaking. Saying to Cabrera, in effect, "I know you asked for a lawyer in the Otero case but you can still talk to me without my asking questions on this case" does not establish waiver.¹⁰⁰

100 Even assuming the right being waived was the right to counsel, Cabrera was never appraised after any appreciation of the right to remain silent to avoid incriminating himself.

In conclusion, employing the two-part inquiry under Edwards, the State has failed to meet its burden that Cabrera initiated communication or, if he did, knowingly and intelligently waived his previously-invoked right to counsel.

G

The Court has determined as a factual matter that Cabrera invoked his right to counsel when being interrogated by Sgt. Smith. He testified, however, that he thought Cabrera, instead, refused to answer any more questions; in other words, he invoked his right to remain silent. Sgt. Smith, regrettably, made no notes or indicated in any report what were Cabrera's words and, of course, never clearly memorialized which right Cabrera invoked.

Up to this point in this opinion, the Court has analyzed this case under the Edwards rule which controls the situation where a suspect invokes his right to counsel. The Court has not analyzed the case where, as Sgt. Smith indicates, as may have happened here, that Cabrera invoked his right to remain silent. Assuming, therefore, it was the right to silence which was invoked, different constitutional rules apply.

Michigan v. Mosley ¹⁰¹ provides the analytical framework. Mosley, the defendant, was arrested on several robbery charges. At the police station, he was given his Miranda warnings by the arresting officer and declined to answer any questions. The officer ceased the interrogation and shortly thereafter returned him to a cell in the police station. Several hours later, a different officer took Mosley from his cell to another floor in the police station. That officer was investigating a homicide for which Mosley had not been arrested. In addition, the detective investigating the robberies had not questioned Mosley about the homicide.

101 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Before the homicide detective sought to question Mosley, he "careful1y"¹⁰² advised Mosley of his Miranda rights and had him sign a rights waiver form which Mosley signed. Shortly thereafter, Mosley implicated himself in the homicide. The Supreme Court viewed the admissibility of that statement as depending on whether the right to cutoff questioning was "scrupulously honored."¹⁰³ The key to finding no Miranda violation occurred is in this statement from the Court:

102 Id. at 98, 96 S.Ct. at 324.

103 Id. at 104, 96 S.Ct. at 326.

This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.¹⁰⁴

104 Id. at 105-06, 96 S.Ct. at 327.

Despite whatever lack of clarity exists in this case about which right Cabrera invoked, there is no doubt that when he did, Sgt. Smith immediately ceased the interrogation. The first essential requirement of Mosley was met. But, what happened thereafter does not.

Unlike the Mosley case where a "significant" amount of time transpired between the initial invocation and the subsequent interrogation, there was none here. Within a very few minutes, Sgt. Lemon returned to Cabrera. Initially, according to him, he recited the evidence implicating Cabrera in the two murders. While this may not be a per se functional equivalent of interrogation, he did not stop there. He testified that he told Cabrera he, was in a "jam" and had "problems." He brought up Cabrera's daughter and what she might think about her father. He promised to contact the Gander Hill authorities about Cabrera's request for special housing accommodations there when taken to jail later that night.

The record does show, of course, that Cabrera did not say anything incriminating during Sgt. Lemon's second session with him in Media. His incriminating statement came about two hours later. But, that gap in this case is of little, if any, consequence. What happened in Media cannot be segregated from what happened in Wilmington. Back in Wilmington prior to the incriminating statement, Cabrera mentioned the conversation about his daughter and Sgt. Lemon reminded him he had made the call to Gander Hill to arrange special housing for Cabrera. Cabrera also refers to implications, to put it mildly, that he could help himself by talking. That latter point may not alone be indicative of the functional equivalent of interrogation, but it cannot be separated from the totality of the circumstances in this case. None of this occurred in Mosley.

Of greater significance between this case and Mosley is that Sgt. Lemon never provided a "fresh" set of Miranda warnings. The homicide detective in Mosley, however, did and the Supreme Court attached major significance to that. In Mosley, the Supreme Court was able to compartmentalize what happened because the homicide detective did give the Miranda warnings and Mosley unequivocally waived them. That fact and legal consequence is Mosley's most important.¹⁰⁵

105 U.S. v. Hsu, 9^th Cir., 852 F.2d 407 (1988); see Nelson v. Fulcomer, 3^rd Cir., 911 F.2d 928 (1990).

Therefore, assuming Cabrera invoked his right to silence, the police conduct here does not pass muster under Mosley.

II

Cabrera also argues that his statement was involuntarily given. Voluntariness of a confession is determined from the totality of the circumstances surrounding it.¹⁰⁶ The State has the burden of proving voluntariness by a preponderance of the evidence.¹⁰⁷ To be voluntary, a confession must be "the product of a free and deliberate choice rather than intimidation, coercion and deception."¹⁰⁸ "Coercion can be mental as well as physical . . ."¹⁰⁹ Coercive police activity is a necessary predicate to finding a confession involuntary.¹¹⁰ "Coercion is determined from the perspective of the accused."¹¹¹ The totality of circumstances includes the defendant's age, extent of education, lack of any Miranda warnings, length of detention and repeated or prolonged questioning.¹¹²

Cabrera was 27 in 1997. He sounded articulate on tape, although not the most educated person. He was not under the influence of drugs or alcohol, and no claim that he was; nor is there any evidence or claim of mental impairment. The police sessions were not long. Unlike the strain between Det. Collazo and Cabrera, there is no evidence of such strain involving Sgt. Lemon. During the second session in Pennsylvania, it is likely St. Lemon lived up to the "aggressive" label Sgt. Smith used to describe him. But that aggressiveness was not to the degree that the statement made later was the product of coercion.

The second session in Pennsylvania lasted twenty to thirty minutes. The taped session in Delaware lasted forty minutes. While the Court has found Sgt. Lemon goaded Cabrera into talking, he did not badger him. Cabrera and Sgt. Lemon discussed wrestling on the way back to Delaware. Whether this was ingratiation or just passing time does not render the statement involuntary. Promises, of course, can raise caution flags and the promise to call Gander Hill authorities and then reminding Cabrera it had been done is troublesome in the totality of the circumstances. That was clearly ingratiation to encourage Cabrera to talk. In this case, however, it does not alone, or with all other events, render the statement involuntary. But, the Court is troubled by that promise in the context of the confrontation of Cabrera with the evidence against him. That, as noted, was the functional equivalent of interrogation.

The Court has carefully viewed the video. It has carefully considered not only Cabrera's words, but his demeanor. There is no sense of a coercion rising to the level of involuntariness; just the goading to violate Cabrera's rights. As noted, the failure to give rights is a factor in weighing voluntariness, but that failure need go no further in the voluntariness analysis than it did to exclude the statement for the reasons previously given.

Finally, despite the goading and other things mentioned, the Court finds nothing in Sgt. Lemon's conduct which amounts to that type of police conduct rendering the statement involuntary. Under the totality of circumstances, therefore, the Court finds Cabrera's statement to have been voluntarily given. It is, however excluded on other grounds.

CONCLUSION

For the reasons stated herein, the statement given by defendant Luis Cabrera on April 8, 1997 to the Wilmington Police is inadmissible. The defendant's motion to suppress is GRANTED.

IT IS SO ORDERED.