Opinion
I.D. No. 0201017168.
Submitted: September 29, 2004.
Decided: October 22, 2004.
Jennifer-Kate Aaronson, Esquire, Potter, Carmine, Leonard Aaronson, Wilmington, Delaware, Attorney for Defendant.
Donald R. Roberts, Deputy Attorney General, New Castle County, Attorney for the State of Delaware.
MEMORANDUM OPINION
This case involves the death of a two-year-old child, allegedly at the hands of her father. Defendant has moved to suppress two pieces of evidence: (1) a videotape of the police interviewing him; and (2) a videotape of a Child Advocacy Center interview of another daughter, in which she relates Defendant's frequent acts of child abuse against the victim. Considering the totality of the circumstances, the Court holds that the police did not properly clarify the defendant's ambiguous assertion of his Fifth Amendment right to counsel. Therefore, the tape of the police interview must be suppressed. On the other hand, the Court concludes that Defendant has stated no valid reason to suppress the videotape of the child's interview. Defendant's motion is therefore GRANTED IN PART and DENIED IN PART.
I. Statement of Facts
A. The ChargeTwo-year-old Victoria Ferris ("Victoria") died at Christiana Hospital in late January 2002. The cause of death was allegedly a subdural hemotoma, i.e. a skull fracture that caused blood to collect on and ultimately suffocate her brain. Defendant Tyrone Phillips, Victoria's father, acknowledged that the victim was under his sole care at the time she sustained the head injury, which he explained by telling investigators that the child had fallen off a playground apparatus.
Though there has of yet been no mention of it in any filing, Defense Counsel alluded at oral argument that she intends to dispute the hospital and medical examiner's opinion, arguing that Victoria actually died of a septic condition brought on by pneumonia.
The State intends to offer medical evidence that Phillips' story could not possibly account for Victoria's condition, and that the victim had numerous other injuries in various stages of healing, suggesting a long pattern of child abuse. The State's theory of the case is that Phillips struck Victoria, fracturing her skull and ultimately killing her. The State has therefore charged Phillips with Murder By Abuse Or Neglect, a type of First Degree Murder.
B. The Police Interview
Phillips' implausible explanation for Victoria's injuries prompted hospital nurses to contact the police, who immediately began to investigate Phillips. This investigation culminated in two interviews at the Wilmington Police station on January 22 and 24, 2002. The State concedes that the police did not provide Miranda warnings to Phillips during the first interview, and that any statements made therein are therefore not admissible. The police conduct at the second interview, and the videotape thereof, is one of the subjects of this motion.
Phillips argues that the police ignored his repeated attempts to invoke his Fifth Amendment right to counsel, and that the statements he made during the second interview are therefore inadmissible. The State's position is that Phillips never adequately invoked his counsel right. Alternatively, the State argues that if Phillips did invoke the Fifth Amendment, he did so only ambiguously, and the police sufficiently clarified his wish to continue the interview.
The relevant portions of the interview are as follows. These excerpts are referred to as "Invocation I," "Invocation II," "Invocation III," and "Invocation IV," respectively.
Invocation I
Detective Connor ["DC"]: Okay. And then we'll do that [polygraph test] and see what the results are of that. I'm not going to administer the test. It's my case. I'm going to have Sergeant Donovan do it.
Tyrone Phillips ["TP"]: Do I think I need a lawyer, maybe I should, maybe . . .
DC: Polygraphs are not admissible in a court of law. It can't be used against you.
TP: Because I don't know, I've never been through this before. So which I don't know the routine or whatever.
DC: All right, I'm just telling you straight up. Before we even talk about anything about it I'm just telling you, you know why you're here. Obviously, because of your daughter.
TP: Right.
DC: Okay. And I'm just saying if you want to, if you want to take a polygraph test in reference to that incident we're here for you and you can do that. It's not admissible in court at all in the State of Delaware.
TP: I don't know. I still might — I still might have to get a lawyer if I have to say yes or no.
DC: Well, that's up to you. I'm just telling you. I'm just telling you honest "Injun," no bullshit, that it's not admissible in the State of Delaware. It can't be used against you. Based on the results, you know, it might work in your favor. I don't know.
[Interrogation continues for 8 minutes]
Invocation II
DC: Do you know that you have the right to stop answering questions at any time you want?
TP: Yes.
DC: Okay.
TP: Questions about murdering my daughter?
DC: That's the investigation that I'm doing.
TP: I need — I need to call — I need to call my family. I need to call my uncle that maybe refer me a lawyer. I need to call somebody.
DC: All right.
TP: How is Lauren [Defendant's girlfriend]?
DC: She's fine. She's getting interviewed.
TP: Oh my goodness.
DC: Do you want a minute to think about this?
TP: Think about what? What do you want me to do? I don't understand. What do you want me to do? They're charging me with murder? They're charging me for saying I beat my daughter in the head?
DC: Listen, listen to me. Listen. Based on what you told me, and based on what you told the doctors at the hospital, not even close.
[Interrogation continues for 10 minutes]
Invocation III
TP: I want — I want to see pictures.
DC: You want to see pictures of your daughter?
TP: I want to see pictures please. I want to see these bruises.
DC: Are we going to keep discussing this or are you going to get a lawyer or what's the deal?
TP: Yeah, I'm going to go get a lawyer because . . .
DC: All right. Then basically then this is going to be a waste of my time.
TP: Can I see them please?
DC: Yeah.
[Interrogation continues for 13 minutes as DC questions about photos]
Invocation IV
DC: You might have made a mistake and lost your temper. I don't know.
TP: Officer, officer, I don't lose my temper like that.
DC: There was nobody else with her.
TP: I think — I think I got to call a lawyer.
DC: That's cool.
TP: I want to call a lawyer.
DC: All right. I got to tell my supervisor.
Videotaped Statement of Tyrone Phillips at 19:00:39. Hereinafter, remarks will be referenced to the time they occur on the tape in the format "Phillips at ___."
Phillips at 19:08:03.
Phillips at 19:18:19.
Phillips at 19:30:45.
Phillips argues that, though the police properly read him his Miranda rights, they utterly ignored the limits that those rights place on police conduct. His argument implies that the police overbore his will by refusing to acknowledge his desire to seek counsel. The State counters that Phillips consistently reinitiated conversation whenever the police paused, and that therefore his invocations could not have been unambiguous, serious, or protected.
C. Valashya Phillips' Interview
After Victoria's death, her seven-year-old half-sister, Valashya Phillips ("Valashya"), told her mother that she had seen the defendant abusing Victoria. A trained forensic investigator at the Child Advocacy Center interviewed Valashya at considerable length, establishing that the child had observed Phillips beat Victoria on numerous occasions. The following exchange is particularly relevant:
Valashya Phillips ("V"): When Victoria was still living, when she used to not put her shoes on right or her clothes on right, because she's only two, [Phillips] used to push her, or sometimes when she was crying he used to throw her on the bed and make her bump her head and sometimes he put her in the corner.
* * *
Q: What would your dad do when Victoria cried?
V: Send her to bed and push her in the bed and make her bump her head.
Q: How would he make her bump her head?
V: When he pushed her like throw her like just hold her and throw her.
Q: And what would she bump her head on?
V: The wall.
* * *
Q: How many times did you see your dad do that to Victoria?
V: Every time I spent the night there.
* * *
Q: What would he yell at you for that made you cry?
V: Because I was crying because of Victoria.
Q: And what was happening to Victoria that was making you cry?
V: She was bumping her head.
Q: And how was Victoria's head when she bumped it?
V: She was crying because it hurt.
Q: Did you ever see anything on Victoria's head?
V: [Nods]
Q: What did you see on Victoria's head?
V: A little red mark.
* * *
Q: How did she bump her head?
V: Because when he threw her he threw her very hard on the bed and she landed hard.
Q: And what would she hit her head on?
V: The bed and the wall.
Q: Describe to me how he would throw her?
V: Well, he would throw her like, he would throw her like, he would pick her up and THROW her.
Videotaped Statement of Valashya Phillips at 14:09:04. Hereinafter, remarks will be referenced to the time they occur on the tape in the format "Valashya at ___."
Valashya at 14:10:18.
Valashya at 14:11:19.
Valashya at 14:13:45.
Valashya at 14:20:30.
Remarkably, the suppression motion ignores this testimony, reasoning that the tape proves that "Phillips never did anything `except yell' when he was angry or upset." The defense therefore objects to the tape on relevancy grounds. Contradictorily, Defendant also argues that Valashya's testimony should be excluded as "other crimes" evidence pursuant to D.R.E. 404(b). Defendant's logic seems to be that, since the State only pointed to the head injury as the cause of the victim's death, testimony about the other times Phillips allegedly beat the child is meant only to show that he killed Victoria in conformity with his character as a violent child abuser. Without any elaboration, the defendant argues that this testimony fails the admissibility test established in Getz v. State.
Def. Reply to the State's Opp. To Def. Supp. Mot. in Limine at ¶ 2.
538 A.2d 726 (Del. 1988).
II. Discussion
A. Phillips' statement is inadmissible because the police failed to clarify his ambiguous assertion of the Fifth Amendment right to counsel.The 1990 Supreme Court case of Crawford v. State established Delaware as a "clarification" jurisdiction. This means that when a suspect ambiguously asserts his Fifth Amendment right to counsel during custodial interrogation, the police must cease all questioning except that directed to the narrow issue of whether the suspect actually wants a lawyer. The clarification approach represents a medium between two other alternatives: (1) ignoring all but the most unequivocal Fifth Amendment assertions, or (2) ceasing interrogation upon any Fifth Amendment assertion, no matter how vague, timid, or oblique.
580 A.2d 571 (Del. 1990).
Id. at 577.
The Court has little trouble finding that the police failed to meet the Crawford standard in this case. Within two minutes of starting the interview, Phillips said, "Do I think I need a lawyer? Maybe I should." This is the type of statement that "reveal[s] to the interrogating officer that the defendant is contemplating exercising his right to have an attorney present, and . . . the officer should clarify the defendant's wishes before proceeding further." Once Phillips made this ambiguous invocation, it became the officer's duty to limit further questioning to determining whether the defendant actually wanted a lawyer present with him during interrogation.
Id. at 576, citing Towne v. Dugger, 11th Cir., 899 F.2d 1104, 1109 (1990).
Instead of this required clarification, the officer tried to dissuade Phillips from seeking counsel by offering him legal advice, i.e. that polygraph tests are not admissible evidence and thus could not be used against him in the event of a trial. This conduct plainly violates Crawford: "If, however, the police make additional inquiries concerning a suspect's intentions, the clarifying questions may not coerce or intimidate the suspect or otherwise discourage his effort to secure counsel, if that is his intention. Nor may the police tender any legal advice or attempt to dissuade the suspect from pursuing an intended course." Crawford, along with the numerous United States Supreme Court cases upon which it is based, confirms that the remedy for this type of Miranda violation is suppression.
Id. at 577.
Id. at 577-8.
The Court is also persuaded by the scope and severity of the Miranda violations in this case. As noted, Phillips had to invoke his right to counsel four separate times before the interrogating officer would acknowledge him. While the State may have reasonably argued that Invocations I and II were ambiguous, and that it was Phillips who reinitiated conversation, Invocation III was crystal clear. There is simply no excuse for the detective to have continued interrogating Phillips after this unmistakable assertion of a constitutional right. Indeed, Phillips' repeated invocations seem to have angered the detective, who became markedly more accusatory and adversarial after each attempt. This conduct in the later stages of the interview removes any doubt that the detective's failure to clarify Phillips' earlier invocations was either intentional or a reckless disregard of the defendant's rights. The law therefore requires that this statement be suppressed.
B. Valashya's statement is admissible to prove, inter alia, absence of accident.
Looking past Defendant's questionable relevancy argument, which ignores the substance of Valashya's interview, the issue before the Court is whether the State has a valid purpose for offering the child's statement. D.R.E. 404(b) reads as follows:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In Getz v. State, the Delaware Supreme Court enunciated guidelines to consider in determining the admissibility of other crimes evidence. The relevant factors are:
(1) The evidence of other crimes must be material to an issue or ultimate fact in dispute in the case. If the State elects to present such evidence in its case-in-chief, it must demonstrate the existence, or reasonable anticipation, of such a material issue.
(2) The evidence of other crimes must be introduced for a purpose sanction by Rule 404(b) or any other purpose not inconsistent with the basic prohibition against evidence of bad character or criminal disposition.
(3) The other crimes bust be proved by evidence which is "plain, clear and conclusive." . . .
(4) The other crimes must not be too remote in time from the charged offense.
(5) The Court must balance the probative value of such evidence against its unfairly prejudicial effect, as required by D.R.E. 403.
(6) Because such evidence is admitted for a limited purpose, the jury should be instructed concerning the purpose for its admission as required by D.R.E. 105.
538 A.2d at 734 (internal citations omitted).
In this case, the first two criteria are closely related and both satisfied. The evidence of misconduct to be offered by the State is material to a fact in dispute — the cause of Victoria's death — and it is obviously introduced for a purpose sanctioned by D.R.E. 404(b).
Throughout the investigation, Phillips maintained that Victoria sustained her head injury by falling from a set of monkey bars. Stated another way, Phillips claims that Victoria's death was an accident. The State's expert will testify that the medical evidence does not support this explanation, but does support the conclusion that Victoria died of a beating. Valashya's statement also undercuts Defendant's story, suggesting that Phillips had repeatedly assaulted Victoria by hurling the two-year-old into a wall; an act consistent with the child's injuries. Valashya's statement tends to prove that Victoria's death was no accident, and is precisely the type of evidence that D.R.E. 404(b) permits.
Assuming that Phillips abandons his "monkey bars" defense to claim that Victoria actually died of a septic condition, Supra Note 1, Valashya's statement becomes even more relevant and admissible. While defense counsel alluded that she may produce a medical expert to testify that Victoria was septic because she recently had pneumonia, it is common knowledge that another cause of a septic condition is the festering of internal injures over time, such as the time period that Valashya's statement shows that Phillips was beating Victoria. Valashya's statement would then not relate to "other crimes" within the meaning of D.R.E. 404(b), but, as the actual cause of Victoria's death, would go directly to the crime for which Phillips is to be tried.
In accordance with the third and fourth Getz criteria, the child's statement describing Defendant's action has been reviewed by the Court, and the Court finds it to be "plain, clear, and conclusive." These other acts were also not too remote in time from the child's death, particularly in light of the brevity of her life and the even shorter period of time that she was in her father's care.
Turning to the fifth factor, the Court is required to determine if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, the potential for confusing or misleading the jury, or needless cumulative effect, per D.R.E. 403. The potential for prejudice from evidence that Phillips repeatedly assaulted Victoria by throwing her into a wall or bed is undeniable. But its probative value is extremely high; it practically torpedoes Phillips' "loving father" façade and his explanation that the child's death was an accident. It also explains how a two-year-old child could be literally covered in injuries incurred at different times, one of which allegedly caused her death. There is nothing unfair about the prejudice Phillips will suffer from admitting this evidence; he brought it upon himself by choosing such an improbable defense.
Finally, the Court is required under Getz to give an appropriate instruction to the jury as to the limited purpose for which the evidence of uncharged misconduct is to be considered. With counsels' input, the Court will craft such an instruction for use at trial. Because all of the factors outlined in Getz are satisfied, Valashya's statement is admissible.
III. Conclusion
Because the interrogating officer failed to respect and clarify Phillips' assertion of his Fifth Amendment right to counsel, Defendant's motion to suppress the videotaped statement that he gave to police is hereby GRANTED. Because the statement of Valashya Phillips falls within a specific exception to D.R.E. 404(b)'s prohibition against evidence of other crimes, Defendant's motion to suppress the videotape of this statement is hereby DENIED.