Opinion
NO. PD-0418-24
09-11-2024
The STATE of Texas v. Anthony SIBRIAN, Appellee
John R. Messinger, for the State of Texas. John G. Tatum, for Appellee.
DISSENT TO REFUSAL OF STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
John R. Messinger, for the State of Texas.
John G. Tatum, for Appellee.
Petition for Discretionary Review Refused.
DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Keel, JJ., joined.
After being given Miranda warnings during a police interview, Appellee was asked if he was willing to talk. He responded by asking, "Umm … could I … could I get a lawyer first, or—?" The State argues that this was not an unambiguous request for counsel under Miranda but, instead, could have been reasonably construed as a request for information, which was satisfied by the officer’s response. I agree.
The question was recorded on video. Dots indicate pauses, a dash indicates the drawing out of a word, and italics indicates rising pitch on a particular word.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
I. BACKGROUND
A. Interrogation
Appellee, a seventeen-year-old high school-school sophomore with no prior criminal record, was taken into custody regarding the shooting death of his father. Dallas Police Detective Brian Tabor conducted a video-recorded interview. Detective Tabor read warnings in accordance with the Texas confession statute, which encompasses the warnings required by Miranda. Detective Tabor expanded on the "right to terminate the interview at any time" warning required by the Texas statute. He explained that this warning meant that if Appellee wanted to quit talking, he could say, "I don’t want to talk anymore."
See Tex. Code Crim. Proc. art. 38.22, § 2(a).
See id. § 2(a)(5).
The following then occurred:
Tabor: Are you willing to talk to me?
Appellee: Umm … could I … could I get a lawyer first, or—?
Tabor: That’s actually your right; I’m here just to hear your story. If you want an attorney, that is your right, and that’s what’s on the card, OK? Again, you have that right, and the right to terminate at any time. So, if you want to talk a little bit, and if you start to feel uncomfortable about it, you can terminate at that point. If you want to ask me questions about what’s going on, and I can explain to you what’s going on as well. If you want an attorney, again, that’s your right. Um, so you can make up your mind on that. If you just want to sit here and talk, and figure out what’s going on, and I can explain that to you, you let me know what you want to do.
Appellee: Uh, have any of my family members been contacted?
Tabor: Yeah, I’ve talked to your family. Appellee: Like, tonight?
Tabor: Yeah, so do you want to talk a little bit right now?
Appellee: Just about my family members, like, who’s coming, or who’s been contacted.
The interview continued, with the detective advising Appellee that he had spoken with his aunt. Then the detective asked questions about Appellee, his family, and his father’s death. Appellee responded to the detective’s questions and never attempted to terminate the interview.
B. Suppression
Appellee was charged with murder. He filed a motion to suppress most of the statements in the interview—those that occurred after Detective Tabor had advised him about who in his family had been contacted. The trial court granted the motion to suppress. The trial court found that, in response to Detective’s Tabor’s initial question about whether Appellee was willing to talk, Appellee answered, "Could I get a lawyer first." The trial court otherwise recited the facts surrounding the interrogation consistent with the facts set out above.
In its conclusions of law, the trial court held that Appellee unambiguously requested counsel. The trial court concluded that Appellee’s use of the word "first" is what made the request unambiguous. The trial court also concluded that Appellee later expressly limited any statements without a lawyer being present to only discussion about which family members had been contacted and who was coming to help him. The trial court construed Appellee’s discussion about wanting to talk only about the contacting of family members as reaffirming his desire to talk only after being provided a lawyer. The trial court further found that the use of the word "first" in combination with the expressed limitation to talking about the contacting of family members meant that Appellee’s intent was not ambiguous. The trial court also concluded that the timing of Appellee’s statement about counsel—being made immediately after warnings were given and a request to talk was made—clearly supported a lack of ambiguity.
The trial court also concluded that the detective was not trying to clarify whether Appellee was invoking his rights but was trying to persuade him to talk, and the trial court found some of the detective’s testimony to be not credible. In addition, the trial court concluded that Appellee’s "age, inexperience with law enforcement, and intellectual abilities, made it difficult for him to assert his rights a repeated time, after he had already initially done so." The trial court also concluded that Appellee did not knowingly, intelligently, and voluntarily waive his Miranda rights.
C. Appeal
The State appealed, and the court of appeals affirmed. The court of appeals set out facts consistent with what I set out earlier, but like the trial court, the court of appeals characterized Appellee as having said, "Could I get a lawyer first." The court of appeals held that, even if this statement about a lawyer could be construed by a reasonable police officer as "asking whether it was possible for him to get a lawyer," Appellee did not "simply engage in further conversation with Detective Tabor." Rather, the court of appeals found that Appellee "clearly limited what he would discuss to his ‘family members - who’s coming and who’s been contacted.’ " Consequently, the court of appeals concluded that, under the totality of the circumstances, Appellee "clearly and unambiguously invoked his right to interrogation counsel, subject to an express limitation" about the contacting of family members. Thus, the court of appeals concluded that "interrogation, beyond that limited subject, should have ceased."
State v. Sibrian, No. 05-23-00033-CR, 2024 WL 936277 (Tex. App.—Dallas March 5, 2024) (not designated for publication).
Id. at 3.
Id. at 5.
Id.
Id.
Id.
II. ANALYSIS
If, after being given Miranda warnings while in custody, a suspect has invoked his right to counsel, law-enforcement interrogation of him must cease until an attorney is present or the suspect initiates conversation himself. Like other aspects of Miranda, this requirement is a rigid prophylactic rule not required by the Fifth Amendment but designed to protect the Fifth Amendment right. For this rigid requirement of ceasing interrogation to apply, the suspect must have "actually invoked his right to counsel." And to actually invoke the right to counsel, a suspect must "unambiguously request counsel." Whether a suspect has unambiguously requested counsel is "an objective inquiry," and "a statement either is such an assertion of the right to counsel or it is not."
Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).
Id. at 459, 114 S.Ct. 2350.
Id. at 458, 114 S.Ct. 2350 (quoting Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)) (emphasis in Davis).
Id. at 459, 114 S.Ct. 2350.
Id. at 458-59, 114 S.Ct. 2350.
Id. at 459, 114 S.Ct. 2350 (quoting Smith v. Illinois, 469 U.S. 91, 97-98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984)).
In construing Appellee’s question as "Could I get a lawyer first," and implying that it was a declarative statement, the trial court and the court of appeals both omitted significant context within the question. What actually came out of Appellee’s mouth was, "Umm … could I … could I get a lawyer first, or—?" The "Umm," the repetition and pausing, the raising of pitch on the word "lawyer," and the hanging "or," all injected uncertainty into the question—suggesting he was seek- ing information about his right to counsel rather than making a request for counsel. And we should not be required to blind ourselves to the video and assess what Appellee said purely as it would appear in written form. The Supreme Court of California has recognized, for instance, that a "no" answer to an imprecise question about whether to continue an interview could be ambiguous based on the "defendant’s demeanor and vocal inflection as recorded in the videotaped interview." As the State argues in its petition for discretionary review in the present case, the video shows that Appellee’s "words and tone were laced with uncertainty." And we are not required to defer to the trial court’s findings if the video indisputably contradicts them.
People v. Flores, 9 Cal. 5th 371, 424, 262 Cal.Rptr.3d 67, 462 P.3d 919 (2020).
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000).
We have previously discussed decisions in various jurisdictions addressing whether statements such as "I should have a lawyer" or "I think I want a lawyer" constitute unambiguous requests for counsel under Miranda. We did not discuss the type of language currently before us.
Davis v. State, 313 S.W.3d 317, 339-41 (Tex. Crim. App. 2010),
See id.
Some courts have found a post-Miranda-warnings statement involving a variation of "Can I get a lawyer" or "Could I get a lawyer" to be an unambiguous request for counsel, but the context in each case was more definitive than what we have here. The Supreme Court of Nevada held that "Can I get an attorney?" was unambiguous when there "no other words modifying the statement that suggest [the defendant] was attempting to clarify the extent of his rights or make a temporal inquiry." The Supreme Court of Rhode Island said that the statement, " ‘Can I get a lawyer?’ could be sufficiently clear in some circumstances" to constitute an unambiguous request for counsel, but that "a more exact analysis of the videotape interrogation must be made to determine precisely what defendant said when he used the word lawyer." The Supreme Court of Virginia found an unambiguous request for counsel from a combination of two statements made by the suspect: (1) the suspect asking, "Can I get a lawyer in here?" and (2) after the police response, "Do you want to do that?" the suspect answering, "I already have a lawyer. I mean, I can talk to you, don’t get me wrong. But I just want to make sure I don’t, like I said before, just jam myself up." Other courts have suggested similar statements to be unambiguous requests for counsel, but the cases have involved circumstances distinguishable from the present case. Appellee’s case has temporal language lacking in the Nevada case, but more importantly, other language in Appellee’s question that was not present in the other cases injected uncertainty. There was an "umm," pauses, repetition, and a hanging "or" at the end. And unlike most of these cases, Appellee’s question used the word "could" instead of the word "can"—suggesting, if subtly, a hypothetical, informational inquiry rather than a request that something be done for him. As my discussion of out-of-state cases shows, there is no binding authority on our current situation, and there are not even that many decisions from the high courts of various states or from the federal circuits that involve similar language. And even for the out-of-state decisions that exist, there are significant differences in the facts that could be important.
Carter v. State, 129 Nev. 244, 247, 248, 299 P.3d 367 (2013) (also saying, "It is implausible that Carter was simply asking if he had the theoretical right to an attorney considering that detectives had just told him that he had such a right.") (bracketed material substituted for defendant’s name).
State v. Dumas, 750 A.2d 420, 425 (R.I. 2000) (also saying, "In normal parlance, this syntactic phraseology is an acceptable and reasonable way to frame a request" but a remand was necessary because the quality of the videotape was poor and technological enhancement techniques might clarify what was said).
Commonwealth v. Hilliard, 270 Va. 42, 52, 613 S.E.2d 579 (2005).
See Taylor v. State, 274 Ga. 269, 271-73, 553 S.E.2d 598 (2001) (In response to a police officer asking her to tell her side of the story, the suspect asked, "Can I have a lawyer present when I do that?" The police officer answered, "You can," and the suspect responded, "Okay," but then the officer said it would not change what was recorded and that he knew she was there during the crime but wanted her side of the story. After eliciting an admission that she was there, the police officer talked about her needing to "help yourself," and the suspect asked, "How can I do that without a lawyer?" The officer went into a long discussion about telling the truth and eventually elicited a confession that she had killed the victim. After saying that the gun was in her mother’s trailer, the suspect said, "I want a lawyer," but the interrogation continued.); United States v. Lee, 413 F.3d 622, 624, 627 (7th Cir. 2005) (Court found question, "Can I have a lawyer?" to be unambiguous, but ultimately did not resolve whether there was a Miranda violation because it found any error harmless.); Tobias v. Arteaga, 996 F.3d 571, 580 (9th Cir. 2021) (Statement, "Could I have an attorney? Because that's not me," found to be an unambiguous invocation of the right to counsel. The court concluded that "Could I" was simply a more polite way of saying "Can I" and that the phrase "because that’s not me" did nothing to undermine the initial question.).
The court of appeals suggested that Appellee’s question about whether he could get a lawyer could be considered with his later statement about just wanting to talk about the contacting of family members. It is the pairing of these two together, the court of appeals seemed to be saying, that amounted to an unambiguous invocation of the right to counsel. But Appellee’s statement about family members does not have an unambiguous relationship to his question about counsel. After the police detective answered Appellee’s question about counsel and, after an admittedly long-winded explanation, asked Appellee to let him know what he wanted to do, Appellee did not immediately respond by saying what he wanted. Instead, Appellee asked another question: whether any of his family members had been contacted. After the detective answered that question affirmatively, Appellee asked whether that had been "tonight," and the detective again answered affirmatively and then asked again if Appellee would talk with him. It was only after that second request to talk, which followed intervening questions about whether the detective had communicated with Appellee’s family, that Appellee said, "Just about my family members." This response was not only several questions removed from Appellee’s question about a lawyer, but it made no reference to a lawyer at all. This set of facts is very different from the Virginia case discussed earlier, where (1) the second statement of the suspect being considered by the appellate court occurred immediately after law enforcement answered the suspect’s question about the lawyer, and (2) the suspect’s second statement explicitly referred to a lawyer, making it crystal clear that it related back to the suspect’s earlier question.
It might be that Appellee’s statement about just talking about family members had nothing to do with wanting a lawyer at all. It might have been an indication that Appellee was attempting a limited invocation of his right to silence by agreeing to talk only on select subjects. The court of appeals, however, has not addressed whether Appellee invoked a right to silence and whether such an invocation was improperly ignored. It is arguable that the trial court did not address that issue either, but how the trial court’s findings are construed in that regard and whether the court of appeals could address it anyway is something the court of appeals could take up on remand.
See State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013) (A defendant-appellee could benefit from the rule that a trial court can be upheld on any theory of law applicable to the case, though there are limits.).
If a finding that Appellee failed to invoke his right to counsel would necessarily mean that he would prevail on a right-to-silence theory instead, that might be a reason to refuse review. But setting aside whether a right-to-silence issue was litigated at the trial court, it is by no means clear that Appellee would prevail on it. An invocation of the right to silence must also be unambiguous. At best, Appellee made a limited invocation, but even if a suspect can make a limited invocation of silence, the question would be whether he could do that in advance. For example, if the defendant said, "I will talk to you for only five minutes," would the police officer have to set a timer or check his watch and terminate the interview after that amount of time had run? Or does it make more sense to say that the suspect should be the one to bring up the matter when he is no longer interested in talking? Similarly, if a suspect says he wants to talk about one subject but not another and the officer starts to question on the permitted subject, must the officer scrupulously corral any possible straying into an impermissible subject matter, or is it up to the suspect to do that, if the questioning reaches areas on which he does not wish to speak? And is that issue impacted by the fact that Texas requires a suspect to be told he has the right to terminate the interview at any time or by the fact that the detective in this case spent extra time emphasizing that right? The Supreme Court has not addressed whether the right to silence can be invoked for a limited purpose in advance, and if lower court decisions exist on that question, they would appear to be scant. But Miranda rules are the result of a cost/benefit analysis that balances interests, and a cost/benefit analysis might support a rule that a suspect who wishes to speak on some matters but not others should explicitly invoke silence at the time interrogation on prohibited matters is attempted.
Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).
Vega v. Tekoh, 597 U.S. 134, 144-48, 142 S.Ct. 2095, 213 L.Ed.2d 479 (2022).
And the Supreme Court has fairly recently emphasized that the Miranda rule is a "prophylactic" one, and that a police officer’s failure to adhere to it is not itself a Fifth Amendment violation. The Court reaffirmed an earlier statement from Miranda itself that the rules in Miranda would not apply if Congress or the States devised alternative procedures that were at least as effective in protecting the Fifth Amendment right. Texas requires electronic recording of oral statements, and it requires a "right to terminate the interview at any time" warning—both of which go beyond Miranda. At least with respect to a limited invocation of the right to silence, the right-to-terminate warning clearly explains to the suspect that he can quit if the interview reaches subjects he does not wish to talk about, and the electronic recording allows an appellate court to ascertain whether any attempts to terminate the interview were ignored. Even if the officer did run afoul of Miranda with respect to a limited-purpose invocation of the right to silence, perhaps the Texas procedure would be considered at least as protective as Miranda in this type of situation.
Id. at 142-50, 142 S.Ct. 2095.
Id. at 143, 148, 142 S.Ct. 2095.
The right-to-silence issue is not something we are in a position to review now. I mention it only to show that it is not clearly inevitable that Appellee would prevail on it. Because the right to counsel issue that is before us is also an open question—and an important one—I would grant review. Because the Court does not, I respectfully dissent.