Opinion
C.A. Nos. IN-00-11-1715, IN-00-11-1716, IN-00-11-1718, IN-00-11-1719 IN-01-02-0569
Submitted: August 21, 2001 Argued: December 10, 2001
Decided: January 15, 2002
ID NO. 0011014236, Upon Motion of Defendant Alonzo Roberts to Suppress — GRANTED
Daniel R. Miller, Esq., Deputy Attorney General, Department of Justice, for State of Delaware
Thomas A. Pedersen, Esq., of Wilmington, Delaware, attorney for defendant Alonzo Roberts
MEMORANDUM OPINION
Defendant Alonzo Roberts has moved to suppress statements he gave to the New Castle County police on November 17, 2000. Those statements implicated him in events for which he has now been indicted: two counts of robbery in the first degree, two counts of possession of a firearm during the commission of a felony, one count of burglary in the first degree and one count of conspiracy (with unknown others) in the second degree. Roberts contends his incriminating statements were obtained in violation of his rights secured by Miranda v. Arizona, and were not voluntarily given. The Court conducted a suppression hearing on December 10, 2001 and has now listened to several hours of a taped session with the County Police.
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
An unedited typed transcript of the taped session was introduced at the hearing. Portions of it are quoted later in this opinion. The best evidence, of course, is the tapes, particularly since they convey evidence not found in the words on paper. After listening to those tapes, the Court concludes the statements made were involuntary. Therefore, the motion to suppress is GRANTED.
FACTUAL BACKGROUND
Detective Brad Milton of the New Castle County Police Department and other police officers executed a search warrant at Roberts' home in Wilmington on November 16, 2000. Roberts was not home but his mother was. Det. Milton asked her to have Roberts contact him in reference to a robbery investigation.
Roberts called Det. Milton on the morning of November 17th and agreed to come to County headquarters. He drove himself there. Det. Milton took Roberts into an interview room and the two started to speak around 9:40 a.m. The conversation in that room lasted until 12:15 p.m. All of it was tape recorded. A conversation between the two occurred thereafter outside the interview room but was not recorded in any fashion. At no time during the taped interview or outside did Det. Milton advise Roberts of his Miranda rights. He started to on several occasions but was distracted by Roberts' questions that if he did so, did that mean he would be arrested.
Roberts was not arrested during the taped interview session. Det. Milton did inform Roberts on several occasions that he was going to be arrested. Det. Milton left no doubt of that. But, Det. Milton let Roberts leave after concluding their conversation in the parking lot.
It is the consequences of a delayed arrest, however, which Det. Milton repeatedly made known to Roberts which form the crux of the involuntariness contention. Det. Milton made it clear he wanted Roberts to confess to him during that interview and not later. Also, he wanted it done then to insure Det. Milton would be on duty. The reasons, he again repeatedly stated, were that if Roberts confessed, "cooperated," Det. Milton would make that known to the magistrate setting bail. Also, the detective said he would make it known to the prosecutor that Roberts had cooperated. At one point, he even said cooperation with the investigation was something the judge sentencing himself would read.
Well he gonna, he gonna, there's guidelines he has to follow. The key is, he asks, if you've ever been to an arraignment, they always ask, what's the state's recommendation. I'm the state. Do you know what I'm saying?
And at that point I tell the judge a little bit about you. He don't want to hear it from you. He want to hear it from me. I tell him, your honor, he walked in her on, he called me. He wanted to come in hear, he wanted to resolve this situation. He's a remorseful young man. He, you know, he ain't like the main one here, your honor. You tell him all the stuff that you know. You know what I mean? You don't' make up stuff, though.
The prosecutor sits with me. We talk. We have an intake. We sit down. My job is to collect the facts. His job is to try the case based on the facts that I collect. We put a story together. Now, even when a story works, when you get a case, right? Who you need the most? The person that helped you? Right? Who you got to help, who you got to help?
State's Exhibit 1 at 53.
By not cooperating at the moment and delaying his arrest, Det. Milton described unfavorable consequences that would follow. For instance, if he were not on duty when Roberts was arrested, there would be no police officer to tell the bail-setting judge of his cooperation. Det. Milton said he was willing to let Roberts leave for a little while, but if he did so without first making a statement, he ran the risks flowing from non-cooperation. Roberts said he wanted to leave and come back at 4:00 or 4:30 p.m. That was after Det. Milton said he would be off duty for the day leaving Roberts on his own. Besides, Det. Milton said, since it was a Friday, it would be unlikely he could reach a prosecutor at that hour and strongly implied Roberts would be stuck in jail for at least the weekend.
In short, as their discussion continued, Det. Milton made it clear that to obtain his cooperation, Roberts had to make his statement then before he left. Coming back later and confessing was not going to cut it:
Q. So my point is, I think the bottom line, the bottom line is, we got to deal with this. And all I'm saying to you is, obviously the way I think, my mentality is, is to deal with it now. That's my mentality because, you know, it's [sic] Friday and I'm gonna deal with some drama, I want to deal with it early. You know what I'm saying? I want to deal with it early. I don't want to get picked up, I don't want to get picked up on no Saturday night. You see what I'm saying? Or get picked up on no Friday night.
* * *
Q. And my point is, let's just cut through the bullshit and get this thing down and get it done and move on and then move into the next phase. And, I mean, I'm sitting there telling you. I'm not lying to you. I can see, I mean, if I wanted to lie to you, I could be like, yo, I do this, I do that. I can't do it. I can't do that, you know that.
* * *
Q. I need your help and in order for me to help you, we got to help each other. We got to help each other.
* * *
Q. Hang on there for one minute. All right? I'm gonna go, I'm gonna go talk to my supervisor. All right?
A. And what?
Q. And I'm gonna tell him, I'm gonna tell him what I want to do? [sic] All right? And we'll take the statement, I'm gonna ask him. I'm gonna say, look, my man wants to give me a statement now. I'm going to do a Mirandized statement and I'm gonna let him roll and we're not going to bother him and he gonna come back at a certain time.
A. Uh-huh [sic]
Q. And that's where I'm at. That's why I didn't come after you like that. You got me?
* * *
A. What did you say, what I'm saying, I'm free, I could walk out right now?
Q. Uh-huh. I will walk you out right now.
A. All right, that's what I'm trying to say.
Q. You want to walk out right now. You don't want. . . . you don't want to talk to me about what happened? You don't want to give me a statement and then leave?
A. Cause you know that I'm gonna give you your statement.
Q. I want it now though and then we'll walk out. I ain't bullshitting you on that.
A. So what you saying is, if you don't get a statement now, you're not going to help me?
Q. What I'm saying to you now is, I'm going to go and finish doing a couple of things I've got to do. I'm not going to wait all, all day. Hold on.
A. I got to leave cause I have to pick this babe up from work. I pick my girl up from work, man. Then I just come back here. I could just come here, I could just come back here, man.
Q. What time you got to pick her up?
A. Like 4:30, 4:00.
Q. So you want to talk, you want to give me a statement now, you go get her, and then you come back. That's what you want to do?
A. Or I could wait and then come back and give a statement, right?
Q. I ain't trying to hang around here all night, man. I'm trying to get this done. It's my point to you, man. I mean, you got time to make other arrangements to get all that other stuff done. We need to take care of this today. We could take care of this during the daytime hours when it's easier to get things done.
A. All right, well, that's true, but at the same time, I'm a free man, I could walk, right?
Q. Uh-huh [sic]
A. So why can't I just get up and walk?
Q. OK. I might be coming right behind you.
A. What you mean?
Q. I might, I'm telling you . . .
A. Just tell me what you mean.
Q. I have enough to lock you up. Here's my point. I want you to help me out, all right? And I don't want to sit around all day without having the help that you can give me. If I have nothing and have only the things that I'm working on for you. And if I got to do that, right, if I got to do that, then I just got to deal with you, put you away and be done with it. That don't help me.
* * *
A. Right now, when you say I'm a free, I can go and walk away. Now you're telling me, if I get up and walk, you're going to come right behind me and lock me up.
Q. No, eventually I'm gonna have to come and get you. I ain't saying I'll walk you to the door and then say, all right, man, now you under arrest, and put the cuffs. . . . man, come on, now. That's dumb. I didn't say that. All I'm saying to you is, what I'm saying to you, what I'm saying, OK, what I'm saying to you is, I could have had an arrest warrant for you last night. I could have had one for you this morning, all right. I need your help for some things that I want to get done today. All right?
That's what I need help with. In return, I'm going to help you. That's why I'm making some calls. My. . . .
A. By me just getting up and walking, right. . . .
Q. Then you don't help me. Then I don't __________—
A. How can you help me, how can you help me?
Q. Because when you get arrested, right?
A. Yeah [sic]
Q. You're gonna need somebody to make a recommendation for your bail, right?
A. Yeah [sic]
Q. You're gonna need somebody to talk to the prosecutor and tell them, look, he's helped me with this investigation, with this, this and this. Right? Don't all that got to be done?
* * *
A. Here's what I'm saying, right now I could get up and leave?
Q. Un-huh [sic]
A. So why can't I get up and leave now. That's what I'm
. . . . .
Q. I'll tell you what. I'll put it to you like this. Fine. But, at this point, you're tying my hands. So I got to sit down at the computer, do the warrant, go see the judge and interrupt all of the day's activities, that's what you're going to force me to do. I'm trying to work with you.
* * *
Q. Well first of all, if you don't want to talk to me about it, then I still got a lot of unanswered questions. So I ain't too happy about that, to be honest with you.
A. But you know I'm gonna help you.
Q. But I don't know that. You might leave out of here and not want to take to me no more.
Transcript (November 17, 2001) at 54-55, 56.
Id. at 50.
Id. at 58, 60, 61.
In short, promises of speaking to the bail-setting judge and prosecutor had a time limit. The limit was reached when Roberts left without giving a statement. That was made clear even, as he repeatedly promised to do, Roberts left, returned and then gave a statement. The deal was off, if he left them without giving a statement.
Roberts did eventually leave. As the tape of their conversation ends, the two are walking out the door negotiating a time for his return. There was further conversation outside in the parking lot. During this time, Roberts apparently made statements implicating himself in the robberies and giving other details of the incident. This conversation was not recorded in any fashion.
DISCUSSION
Roberts asserts two grounds for suppressing his statements. One is a violation of Miranda in that he was in the functional equivalent of custody but was never given his Miranda warnings, and, second, whatever he said was not voluntary. Miranda warnings are required where a person is undergoing custodial interrogation. A person is in custody when he has been taken into custody or his freedom of action has been deprived in any significant way. Whether a person is in custody depends on objective circumstances of the interrogation, not the subjective views of the interrogating officer or the person being questioned. Each case has to be examined on its own circumstances.
State v. Coyle, 567 A.2d 870, 874 (Del.Super. 1989).
Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 173, 50 L.Ed.2d 714, 719 (1977).
Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293, 298 (1994).
California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983).
In this case, Roberts came to County Police headquarters in his own car. He was told repeatedly that he was not under arrest and free to leave. But, he was also repeatedly told he was going to be arrested shortly after he left. Several times, Det. Milton told him that he was 100 percent sure he was involved in the robbery. He wanted to know Roberts' own involvement and who else was involved. Det. Milton even showed Roberts a picture of someone Roberts said had discussed with him the plans for the robbery.
Roberts' freedom of action, however, was limited. He was going to be allowed to leave and did. But, the duration of that freedom was a matter of hours. While in the interview room and still on tape, Roberts told Det. Milton of his knowledge of how the robbery was to occur, in effect, a rip-off of an alleged marijuana dealer. The Court is unable to gauge the incriminating nature or relationship to the indicted offenses, if any, of these statements. That is mentioned because only if incriminating and to-be-offered is this analysis even necessary.
Therefore, the Court assumes there is something of an incriminating content even though Det. Milton expresses dissatisfaction with what was said. But, the statements in the interview room are linked, apparently, to more incriminating statements Roberts allegedly made in the parking lot. Det. Milton followed him out of the building, and off the tape, where Roberts made statements more closely implicating him in the robbery. Or so it is represented to the Court. The record of what was said in the parking lot is, to put it mildly, sparse.
There are three facts known from the events in the parking lot. One is Roberts was still not arrested, another is that he was still not given his Miranda rights, and, finally, he left. The Court is troubled, however, that material events occurred "off tape."
Roberts knew, however, during the two and one-half hour interview that he was free to leave. He knew, on the other hand, that there was a catch, a big catch. To avoid problems with bail setting and later in the case, he was told he needed to talk then, not later.
Even knowing that, he left. Under these circumstances, the Court cannot say Roberts was in custody. Since he was not in custody, Miranda was not triggered.
More troubling in this case is the voluntariness issue. Voluntariness of a confession is determined from the totality of the circumstances surrounding it. The State has the burden of proving voluntariness by a preponderance of the evidence. To be voluntary, a confession must be "the product of a free and deliberate choice rather than intimidation, coercion and deception." "Coercion can be mental as well as physical. . . ." Coercive police activity is a necessary predicate to finding a confession involuntary. "Coercion is determined from the perspective of the suspect." 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.
Alston v. State, 554 A.2d 304, 307 (Del. 1989).
Colorado v. Connelly, 479 U.S. 157, 159, 107 S.Ct. 515, 517, 93 L.Ed.2d 473, 479 (1986); State v. Rooks, 401 A.2d 943, 948-49 (Del. 1979).
Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986).
Miranda 384 U.S. at 448, 86 S.Ct. at 1614.
Connelly, 479 U.S. at 167, 107 S.Ct. at 522.
Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243, 251 (1990).
Fullman v. State, 389 A.2d 1292, 1296 (Del. 1978).
The tape indicates that Roberts had one juvenile conviction. But, the dialogue reveals someone not unsophisticated about the criminal justice system, if not cagey. At the time of his interview, he had just turned. The extent of his education is unclear, probably not a high school graduate. At no time during the interview was Det. Milton verbally (or physically) overbearing.
655 A.2d 1180 (Del.Super. 1995).
The taped interview lasted from 9:40 a.m. until sometime after 12:15 p.m. There is nothing in the record about how long the conversation in the parking lot took. Nor is there any transcript of that conversation. A footnote in DeJesus v. State,19 is particularly prescient:
Lest our opinion be misconstrued, we do not condone use of incommunicado interrogation by police. This practice inevitably introduces a credibility dispute between the defendant and the interrogator at a suppression hearing and/or at trial. The use of recording devices throughout an interrogation minimizes such danger by injecting objective proof into the inquiry. While [the defendant] has not claimed that the detectives acted in an egregious manner during the six minute break, other case may warrant closer scrutiny into police conduct when a voluntariness inquiry is undertaken by a court.
Id. at 1197, n. 8.
The Court has no idea what triggered Roberts to implicate himself in greater detail during the conversation in the parking lot. What is known is that no Miranda warnings were given there, or at any time, for that matter. This is a circumstance which forms part of the totality of the circumstances the Court examines when voluntariness is tested.
Davis v. North Carolina, 384 U.S. 737, 741, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, 898 (1966).
Det. Milton made specific promises. He said he would tell the bail-setting judge of Roberts' cooperation — if he gave a statement then, but only then. He said he would tell the prosecutor of cooperation at intake. He said he had a choice to make about the charges he would place against Roberts, again linking it to Roberts' cooperation. Cooperation would also be made known to the sentencing judge. At no time did Det. Milton promise specific results, however. He left an unmistakable impression that without the cooperation with him then, at that moment and not later, things would not go well with Roberts from the moment of his arrest.
Det. Milton made it clear in his suppression hearing testimony why he wanted Roberts to confess. Roberts was the only person who could tell him who else was involved. This point was made several times during their conversation but not as candidly as in Court. Det. Milton clearly felt he was close to getting a statement from Roberts and, by leaving, the spell would be broken. Even though not overbearing, the tapes manifest Det. Milton's increasing desperation to get Roberts to "cooperate." While Roberts had arrived on his own and was allowed to leave, he knew he was to be arrested shortly and of clear unfavorable consequences for non-cooperation. Cooperation, on the other hand, had favorable consequences which Det. Milton repeatedly made know to Roberts.
It is also true that Det. Milton tried on several occasions to give Roberts his Miranda warnings, but that none were given. In part, this was due to Roberts' own deflection of the line of conversation and not the fault of Det. Milton. It is unclear, however, if Roberts agreed to give a statement when the rights would have been given to him. The lack of Miranda warnings was due, in part, to Roberts' confusion about the consequences of immediate or delayed arrest, if he confessed.
Det. Milton was in a quandary. He had only one known suspect who was the key to the others. He needed Roberts. He clearly bent over backwards in handling a robbery suspect to gain his confidence and cooperation. Det. Milton was relentless over two and one half hours in trying to get Roberts to confess. He feared, not without justification, that if the spell were broken and Roberts left, upon his return, he would not get the statement he needed.
Involuntariness per se does not arise from telling a suspect that cooperation can be helpful. It can be and saying so is not necessarily bad police practice. At times, it can be appropriate and helpful. Here, however, there were specific promises of how Det. Milton would help, coupled with clear threats that, if Roberts did not help, bad consequences would flow. Both consequences were repeated and near the end of the two and one-half hour session. Det. Milton made it clear if no statement were given then and now, Roberts could still leave, but he would immediately prepare an arrest warrant and nothing would be said to anyone about cooperation.
Using the voluntariness tests set out above, the Court finds the statements made in the interview room on tape and outside in the parking lot were not voluntary. They must be suppressed.
CONCLUSION
For the reasons stated herein, the motion to suppress of defendant Alonzo Roberts is GRANTED.
IT IS SO ORDERED.