Opinion
No. 05-10-01503-CR
Opinion Filed December 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-54622-Q.
Before Justices BRIDGES, O'NEILL, and FILLMORE.
OPINION
The State of Texas appeals an order suppressing appellee Morris Wayne Simon's oral statement. In two issues, the State contends the trial court erred in concluding (1) Simon unequivocally and unambiguously asserted his right to terminate the custodial interrogation, and (2) Simon's statement was involuntary. For the following reasons, we affirm the trial court's order. Simon was arrested on a warrant for capital murder. The murder occurred in the course of a robbery. After his arrest, Simon was taken to the Dallas Police Department and put in an interview room. We have reviewed the videotape of the interview in our record. Officer Bruce Chamberlain, the lead detective on the case, was the first officer to interrogate Simon. Chamberlain gave Simon his Miranda warnings, including telling Simon he had the right to terminate the interview at any time. Chamberlain spoke to Simon for about an hour trying to elicit a statement. Simon claimed his innocence, but tried to find out what evidence the State had against him. After an hour in which Chamberlain was unsuccessful in obtaining a statement, he sent in another officer, Detective John A. Davidson, hoping Davidson would be able to "relate with him a little better." Davidson was lead detective on an unrelated capital murder case against Simon's brother. When Davidson entered the room, Simon complained "why do different people keep coming in here and talking to me." Davidson tried to convince Simon to "man up" by confessing to the case. He told Simon they had good evidence and there were cameras in the store. Simon continued to deny involvement. During the interview, Simon told Chamberlain he wanted to talk to his family and go to "Lew Lew," meaning the Lew Sterrett jail. Simon also asked where Detective Thompson was, an officer that had worked on his brother's case. Davidson responded that Thompson had left, but asked if Simon wanted to talk to him. Simon shook his head and said "nah." Detective Davidson continued to talk to Simon but he was unable to elicit a confession. Chamberlain, the lead detective, decided to pull Davidson out and to allow Detective Thompson to try to get a statement. When Davidson left, Simon was alone in the interrogation room. A few seconds later, Simon called out. When there was no response, Simon knocked on the door several times. A voice told him to "hold on" and that they had someone else to come in and talk to him. Simon responded immediately, "No man, no, no, Hell no, I'm ready to go." Shortly thereafter, Thompson entered. When Simon saw Thompson, he immediately shook his head and repeated "I'm ready to go." He stated again, "No, I'm ready to go now." As Simon told Thompson he was ready to go, Thompson responded, "I know you are . . . I know you are . . . Look at me." Simon responded, "No. Hell, no." Thompson testified at trial that he did not think Simon did not want to speak to him, but only that he was "uncomfortable" with the situation. However, on the videotape, Thompson indicated that he knew appellant was ready to go and told him "I came all the way here, you owe it to me to listen to me, you owe me that much. Can you give me that much." Thompson proceeded to tell Simon that he needed to give him information that would let the jury know that he was remorseful. He told Simon the interview would be his only chance to tell his side of the story because his lawyer would not allow him to take the stand. Thompson told him they already knew Simon was guilty and the worst thing that could happen to him was for him to get out of that seat and walk out that door. Simon again said he was ready to go to Lew Sterrett. About an hour after Thompson started questioning appellant, Simon told Thompson he shot someone in a robbery. At the hearing, the defense also presented evidence that Simon suffered from mild to moderate mental retardation. Their expert reviewed the tape and opined that Simon's statement was not voluntary. The State's expert agreed Simon suffered from mild retardation, but disagreed about the voluntariness of the statement. After hearing the evidence, the trial court suppressed Simon's statements. The trial court concluded both that Simon had terminated the interview on several occasions and that the confession was not voluntary. The State appeals. In its first point of error, the State contends the trial court erred in suppressing Simon's statement because Simon did not clearly and unambiguously terminate the interview. We review a trial court's denial of a motion to suppress under a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Appellate courts should afford almost total deference to a trial court's determination of the historical facts, where such facts involve credibility and demeanor of witnesses. Id. The appellate court should give the same deference to "mixed questions of law and fact" where the resolution of the issues involved depends on credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). This deferential standard of review also applies when a trial court's determination of historical fact is based upon a videotape recording admitted into evidence. Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006). If, however, the resolution of questions of law and fact do not involve credibility and demeanor of witnesses, we conduct a de novo review. Guzman, 955 S.W.2d at 89. The Fifth Amendment privilege against self-incrimination is protected during custodial interrogation by certain procedural "safeguards" delineated in Miranda v. Arizona, 384 U.S. 436, 444 (1966). The right to terminate a custodial interrogation is one critical safeguard of the right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 103 (1975). No formal invocation of this right is necessary. Watson v. State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988). If the suspect indicates "in any manner" that he invokes the right to remain silent, the interrogation must stop. Miranda, 384 U.S. at 473-74. A law enforcement officer may not continue to question the suspect until the officer succeeds in persuading the suspect to change his mind and talk. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). However, an interrogating officer is not required to stop questioning if the suspect's indication that he wishes to remain silent is equivocal or ambiguous. Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250, 2260 (2010); Dowthitt, 931 S.W.2d at 257. In determining whether the right to terminate questioning was unambiguously invoked, courts look to the totality of the circumstances. Simpson v. State, 227 S.W.3d 855, 858 (Tex. App.-Houston [14th Dist.] 2007, no pet.). The record shows that after over two-hours of questioning and two police officers had failed to obtain a statement from Simon, police sought to have a third officer, Detective Thompson, attempt to get a statement. Before Thompson could begin, Simon was in the interrogation room alone. He called to police, and then knocked loudly on the door several times. When told to hold on a minute, that someone else was going to come in and talk to him, Simon responded immediately and emphatically, "No, man, No, No, Hell No, I'm ready to go." About fifteen seconds later, officer Thompson entered the room, Simon looked at him shook his head and said "I'm ready to go . . . No. I'm ready to go now. I'm telling you man. No. Hell. No." We conclude under the totality of the circumstances, a reasonable officer would understand Simon's statements — in response to being presented with another interviewer — constituted a clear unambiguous attempt to end the interview. Moreover Thompson's claim that he did not interpret Simon's statements to him to mean Simon did not want to talk to him is belied by his own response to Simon that Simon owed it to Thompson to hear him out. Invocation of the right to terminate an interview need not include any magic words. See Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). Any declaration of a desire to terminate the contact should suffice. Id. (citing W. LaFave, et. al., Criminal Procedure § 6.9(f) at 853 (3d ed. 2007). From all surrounding circumstances, we conclude Simon clearly, unambiguously, and unequivocally asserted his right to terminate the interview. We resolve the first point of error against the State. Because of our disposition of this point of error, we need not reach the State's remaining point. We affirm the trial court's order.