Opinion
I.D. No. 0011012168
Submitted: January 18, 2002
Decided: February 14, 2002
On Defendant's Motion to Suppress. Denied.
Stephen R. Welch, Jr., Esquire, Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Paul S. Swierzbinski, Esquire, Assistant Public Defender, Dover, Delaware, for the Defendant.
ORDER
Upon consideration of the oral arguments and submissions of the parties, it appears to the Court that this is defendant Robert A. Shirey's ("defendant"'s) motion to suppress audio-taped statements, as well as the fruits thereof, for the reason that defendant did not effectively waive his Miranda rights. The Court finds that defendant's motion must be denied because defendant voluntarily, knowingly and intelligently waived his Miranda rights prior to making the statements.
See Miranda v. State of Arizona, 384 U.S. 436 (1966).
Background
Defendant has been indicted for one count of rape in the first degree and two counts of unlawful sexual contact. The police report indicates that on or about November 16, 2000, while subject to custodial interrogation and after waiver of his Miranda rights, defendant made audio-taped statements related to these charges. Defendant seeks to suppress these statements because he alleges they were not made as a result of a voluntary, knowing and intelligent waiver under Miranda.
In March 2001, after making the statements and after defendant became represented by Counsel, defendant was evaluated by Abraham J. Mensch, Ph.D. ("Dr. Mensch") who testified at the suppression hearing as an expert for defendant.
Defendant was then evaluated at the State's request by James D. Seward, Ph.D. ("Dr. Seward") who testified as an expert for the State. The reports of both experts have been submitted to the Court.
Mensch Report
In his report, Dr. Mensch found that defendant:
appreciates the basic meaning of most of the Miranda warnings, though at a superficial level. However, he does not appear to understand the negative long-term implications to him of waiving his rights and talking to police without the presence of counsel, or of agreeing with the police version of his offenses in order to get out of the interrogation as quickly as possible.
Specifically, Dr. Mensch's found that: (1) Defendant was competent to stand trial and possesses capacity to understand the nature of the charges, the proceedings and to assist his attorney in a rational defense. (P. 8) (2) Defendant has a full-scale IQ of 88 (low average). (P. 4) (3) Although defendant functions in the low-average range, vocabulary, verbal expressive skills, abstract reasoning, intellectual functioning and common-sense problem solving and understanding of social conventions were average (spatial, nonverbal problem solving was low average). Social interaction skills were appropriate. Judgement was appropriate to meet the demands of daily living (but was impaired when defendant was stressed or angry).
Defendant has difficulty alternating between two ideas at the same time under pressure. He is easily distracted and suggestible. (P. 4-5) (4) Dr. Mensch used the GSS2, a recently-published research test to assess the extent to which defendant is vulnerable to leading questions, and might be subject to undue influence during interrogation. This test indicates that defendant has a very strong tendency (92nd percentile) to be suggestible, when compared with other individuals of a similar intellectual level. (P. 5) (5) Dr. Mensch noted that if individuals are "suggestible" they are more likely to be obedient, or accepting of requests or suggestions in order to gain some advantage such as ending an interview, or avoiding stressful situations. (P.5)
Seward Report
Dr. Seward found that defendant "currently demonstrates an adequate understanding of his Miranda Rights," and was capable of voluntarily, knowingly and intelligently waiving them. Specifically, Dr. Seward found that: (1) Defendant has "average verbal abilities and low average intelligence, with some indications of mild cognitive impairment." Defendant has a full scale IQ of 80 (low average). Tests did not show gross indications of symptom fabrication or exaggeration.(P. 4-5) (2) Defendant was in the low average (39th percentile) for (auditory) verbal comprehension. The verbal comprehension test questions were presented to defendant verbally; then, he had to verbally articulate the responses. (Dr. Seward noted the importance of this test result, presumably for the reason that this comprehension test examined the verbal comprehension skills implicated during interrogation.) (P. 5) (3) Other skills were extremely low. Perceptual organization was in the 14th percentile; working memory was in the 3rd percentile; processing speed was in the 8th percentile. (P. 5) (4) Defendant was administered the Instruments for Assessing Understanding and Appreciation of Miranda Rights. Defendant's overall performance was within normal limits for a person with his level of intellectual functioning. He demonstrated an understanding of the four primary Miranda warnings and of the nature of police interrogation. Of course, these findings document his current level of understanding, not his level at the time of his interrogation. (5) As to defendant's "competency to intelligently and knowingly waive his Miranda rights at the time of his interrogation, examination of the audiotape . . . does not reveal any coercion or duress. There is no evidence that defendant's will was overborne by threats or intimidation." Furthermore, defendant was not asked any leading questions prior to waiving his rights.
Defendant:
sounded calm and rational at the time of the interrogation. He was not psychotic or intoxicated. He is not mentally retarded. In addition, being in police custody was not a novel situation for [defendant]. He is a `veteran' of the criminal justice situation by virtue of his previous arrests, and thus he has had previous exposure to police procedures. Therefore, . . . [defendant] was competent to make an intelligent and knowing waiver.
Miranda Waiver
When a defendant waives his privilege against self-incrimination and the right to counsel under Miranda, the State bears the burden of proof, by a preponderance of the evidence, that waiver was voluntary and resulted from a knowing, intelligent decision. The Court determines whether the State has met its burden under the fact-intensive totality of the circumstances test. "In examining the `totality of the circumstances' surrounding a waiver of Miranda rights, the Court should examine `the behavior of the interrogators, the conduct of the defendant, his age, his intellect, his experience, and all other pertinent factors.'" In order to properly conclude that a defendant waived his Miranda rights, the Court must inquire as to whether or not the totality of the circumstances show "(1) the waiver was `voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception' and (2) the defendant was fully aware of the rights abandoned."Voluntariness
A `voluntary' "waiver, does not depend upon [the] defendant's personal characteristics; rather, it is limited to `the existence of State misconduct or overreaching.'" "`The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.'" "[T]he voluntariness of a Miranda waiver [does not depend] . . . "on any broad sense of `free choice,'" or require "an abstract inquiry into the defendant's `free will' or subjective view of reality." "Such voluntariness does not concern `moral or psychological pressures to confess emanating from sources other than official coercion.'" The Court looks to see if the defendant's will was overborne.In the case sub judice there has been no evidence presented to show the existence of State misconduct or overreaching, or that defendant's will was overborne. The only possible evidence submitted on this point is the GSS2 test result showing that defendant is "suggestible" to certain types of police questioning that could be considered intimidating, coercive or deceptive. However, when considering voluntariness in the present case, the predictive value of these questions is irrelevant unless it is shown that the police actually asked these types of questions. The voluntariness test focuses on the behavior of law enforcement, and not upon an abstract inquiry into the defendant's `free will' or subjective view of reality. Here, there is no evidence that defendant's will was overborne. Defendant has simply submitted that he is suggestible to certain police behavior without providing evidence that such behavior occurred.
See Dr. Mensch report, Hypothetical Police Questions, P. 6-7.
See DeJesus at 1192 (noting that defendant's claim "that his personal characteristics affected the voluntariness of his waiver is misplaced").
Knowing Intelligent Waiver — Defendant "Fully Aware"
The Court must also decide whether or not the Defendant was fully aware of the rights that he abandoned. A knowing and intelligent waiver of Miranda rights requires the defendant to have, "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Only if the totality of circumstances (the behavior of the interrogators, the conduct of the defendant, his age, his intellect, his experience and, in this case, his "suggestibility") "reveal . . . the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." It must be determined, under the totality of the circumstances, if "the defendant `had sufficient capacity to know what he was saying.'"
Moran, 475 U.S. at 421 (citations omitted).
Id.
Culp, supra.; Russo, supra.; Howard, supra. For this reason, the psychological evaluation presented here cannot be determinative. The psychological evaluation may be one factor the Court may consider in its analysis; however, the Court must perform a totality of the circumstances analysis. The Court cannot suppress a statement without consideration of all the relevant factors, and must review what the Defendant was actually asked, as well as examine "`the behavior of the interrogators, the conduct of the defendant, his age, his intellect, his experience, and all other pertinent factors.'" Ifriqui 2001 WL 167851 at *2.
Considering these factors here, the behavior of the interrogators does not suggest that defendant was without capacity to be aware of "the nature of the right being abandoned or of the consequences of the decision to abandon it." Detective Disharoon testified that, although the interrogation took place sometime late at night on November 15th or early in the morning of November 16th, he did not have any problems communicating with the defendant. The defendant seemed to understand what the detective was saying and was able to talk coherently. There was no indication of drug or alcohol use. The detective testified that after he read defendant his Miranda rights, the detective asked defendant if he understood them. The defendant said that he did. The detective then asked if, with those rights in mind, did the defendant mind that the police spoke with him. Defendant said that he would talk with the police.
Moran supra.; Ifriqui, supra.; DeJesus, supra.
Secondly, defendant's conduct during questioning does not suggest that he did not have capacity or was unaware of what he was giving up. The State's expert addressed the psychological state of the defendant during the actual questioning. Dr. Seward found that the audio tape did not reveal coercion or duress. Defendant "sounded calm and rational. He was not psychotic or intoxicated. He is not mentally retarded." Moreover, low I.Q. would not preclude a knowing, intelligent waiver.
See DeJesus, supra.
Defendant gave rational explanations for waiving his Miranda rights. He explained to Dr. Seward that he waived his rights because he "thought what [he] was doing was in [his] interests," and because he "thought that if [he] went along with it, it would get it done faster." Defendant pretty much gave the same explanations to Dr. Mensch. Defendant explained to Dr. Mensch what the consequences of waiving his rights were. Defendant stated that the right to remain silent means: "You have your own choice whether you want to do this or not. You got the right to say nothing. If you say something, they can use this against you in Court." When asked why he waived his rights, he stated he was in a hurry and wanted to get out of the police station. Defendant told Dr. Mensch that he thought honesty would "get to the heart of the matter and clear it up."
See Dr. Seward Report, P. 4.
See Dr. Mensch Report, P.6.
According to Dr. Mensch, this reasoning does not show an appreciation, by the defendant, of the long-term consequences of his waiver. The Court cannot agree. These statements may also be interpreted to show that defendant knew he could remain silent, but made a choice that it would be better to cooperate. As the State points out, Dr. Mensch's position may appear to "shade into the notion that anyone foolish enough to confess to a crime cannot, almost by definition, have understood the long-term implications of a waiver of Miranda."
Although Dr. Mensch found that defendant was impaired when stressed or angry, and that he had difficulty alternating between two ideas at the same time under pressure, Dr. Mensch did not show how these characteristics proved defendant could not understand the consequences of speaking with the police. As noted by Dr. Seward, the defendant is a twenty-nine year-old man who was a "`veteran' of the criminal justice system," having had over twenty arrests. Defendant had experience with police procedures. He functions in the low-average range, and his vocabulary, verbal expressive skills, abstract reasoning, intellectual functioning and common-sense problem solving and understanding of social conventions are average. Both doctors found defendant's social interaction skills were appropriate. His judgement was appropriate to meet the demands of daily living. He had been able to keep the same employment for a seven-year period. Given defendant's ability to function and his experience with the system, along with his reasons for speaking with the police, the Court cannot say defendant's waiver was unintelligent or unknowing. Moreover, the defendant in the instant case appears significantly more cognizant than defendants in other Delaware cases where knowing, intelligent waiver was found by the courts.
See e.g. State v. Patton, Del. Super., 2001 WL 112074, Goldstein, J. (Jan. 19, 2001) (Mem. Op.) (finding knowing, intelligent waiver where: (1) defendant was fifty-one years old, and was aware that police were his adversaries, having stated that he was "too old to go to jail," and (2) during a police stand-off the defendant negotiated to speak with a higher-ranking officer; (3) where defendant's lab work did not show illegal drugs or intoxication, but he had ingested two percocets; and (4) where psychiatric hospital psychiatric evaluation found that Defendant stated he had been out of touch with reality and had destructive tendencies, was visibly shaking throughout the interview, very agitated and anxious; (5) yet, defendant was alert and oriented to person, place, and time and Defendant's attention span was grossly intact, coherent, with some thought blocking); DeJesus, supra. (finding knowing, intelligent waiver where psychiatric evaluation found marginally-retarded defendant (I.Q. of 71) that did not function well in stressful situations, clung to authority, and is psychologically compelled to answer police questions because of the nature of his upbringing and heritage; (2) was under the influence of certain pain killers; and (3) knew enough English to permit lucid and coherent responses to questions); but see Ifriqui supra. (finding no knowing, intelligent waiver under totality of circumstances test where: (1) Defendant was twenty-seven years old, attended community college, stated he was somewhat familiar with the judiciary system due to a prior arrest; and (2) police did not believe defendant was under influence of drugs; but (3) video tape indicated otherwise (in that defendant slurred words, was slow in responses to questions, rambles and, although seemingly indicates that he understood the rights read to him, appeared to be more preoccupied with receiving a shirt or jacket to wear — and could not remember what happened to his own shirt)).
Conclusion
For these reasons, the Court has determined that the totality of the circumstances surrounding the waiver of Miranda rights in this case show that the defendant's waiver of Miranda was voluntary (in that defendant's will was not overborne, and his waiver was the product of a free and deliberate choice rather than intimidation, coercion or deception), and that the defendant was fully aware of the rights abandoned." There is no evidence of involuntariness here, and the psychological evidence presented does not show that the defendant did not have sufficient capacity to know or understand what he was saying, or that he did not voluntarily intend to say it.WHEREFORE, Defendant's motion to suppress is denied. IT IS SO ORDERED.