• Miranda v. Arizona
• Edwards v. Arizona
• An In-Custody Suspect’s Reinitiation of an Interrogation

An in-custody suspect’s repeated invocations of his right to silence and his right to the assistance of counsel do not necessarily prevent him from later changing him mind and agreeing to talk. The reinitiation of law enforcement’s ability to question the suspect is a matter of the suspect’s choice.  But the suspect’s waiver of his rights may be inferred under the circumstances.

Defendant Michael Raymond Johnson married G.A. in 1985, but maintained very little contact with her over the ensuing years.  In 1996, however, they renewed their relationship and began living together in Ojai, California.  Living with them was G.A.’s 15-year-old daughter, D.G., the product of another relationship, and her boyfriend; Francisco.  Defendant was jealous over G.A.’s relationship with D.G.’s real father, and also suspected that she was messing with Francisco.  So defendant moved out of the house.  But then two days later, on July 17, 1996, defendant showed up at the residence where G.A. worked as a housekeeper.  Armed with two pistols, defendant professed his undying love for G.A., telling her that he had to stay with her “every minute of every day.”  G.A. couldn’t reason with him (as he ranted on about robbing a bank and taking her to Wisconsin) or get him to relinquish his firearms. So, after defendant told her he was prepared to take her by force, she eventually got her employer’s permission to leave.  After going to G.A.’s house first, they eventually headed up to a mountain spot where they’d made love before; G.A’s compliance with his demands the product of defendant’s erratic mental state.  After an unsuccessful attempt to have intercourse, they went back to G.A.’s house where they showered together, defendant keeping his guns within reach the whole time.  G.A. later testified that at no point that day did she feel she could get away from him.  Meanwhile, someone (probably D.G. or Francisco) called the police to report a “domestic disturbance.”  Deputy Sheriffs Peter Aguirre and Steven Sagely responded to the call, with Deputies James Fryhoff and David Sparks responding as backup.  Deputies Aguirre and Sagely approached the front door of the house and knocked.  A visibly upset G.A. (in her bath towel) opened the door and told the officers that defendant was inside, warning them that he had guns.  Deputy Aguirre made an immediate entry as everyone else held back, taking cover when they suddenly heard shots being fired.  Defendant came out of the front door, shooting at Deputy Fryhoff.  Deputy Fryhoff shot back, wounding defendant in the chest. Deputy Aguirre—found in the house with gunshot wounds to the forehead and struggling to breathe—died from his injuries.  His fully loaded sidearm was still in its holster.  A later autopsy revealed that Deputy Aguirre had been shot three times; once in the left arm and twice in the forehead.  Stippling showed that the two head shots were with the muzzle of defendant’s gun only 12 to 18 inches from Deputy Aguirre’s head.  Investigators repeatedly attempted to interview defendant when he was first taken to the emergency room of a nearby hospital as he was being treated for his chest wound and over the span of the next three hours, defendant invoking his right to silence and/or to the assistance of counsel four times in that time span.  On one of those attempts, defendant said that he was a “little bit in shock right now . . . (but that he) may want to talk to you later.”  Shortly thereafter, while asking defendant for permission to search his house, defendant was asked if he’d be willing to talk to a psychiatrist.  Defendant said that he would.  Other questions were asked about his mental history which, due to the lack of a Miranda waiver, were subsequently suppressed.  Ventura County Sheriff's Detective Robert Young returned shortly thereafter and asked defendant if he was ready to discuss the shooting, reminding him that he had said earlier that he might be willing to talk later.  Defendant told the detective in a fifth invocation that “no,” he’d rather talk to a lawyer first.  Detective Young left, but returned shortly thereafter and angrily chastised defendant, telling him that it was not just a “uniform” he had shot, but rather a “living, productive human being, unlike” defendant, and that he wanted him to know the name of the deputy he had murdered, that he was 26 years old, had a wife and a child, and that defendant needed to remember Deputy Aguirre and his family “every minute of every day for the rest of his life.”  After defendant was transferred to another hospital that same evening, psychiatrist Donald Patterson contacted defendant.  Hired by the District Attorney’s Office, Dr. Patterson’s services were employed to evaluate defendant’s mental state as a homicide suspect (a common prosecutorial practice), and not necessarily to obtain incriminating statements.  Unaware that defendant had invoked his right to counsel, being told only that defendant had invoked his right to silence, Deputy District Attorney Richard Holmes told Patterson to readvise defendant of his Miranda rights and see if he was ready to talk.  DDA Holmes later acknowledged that had he known that defendant had invoked his right to counsel, he would have told Dr. Patterson not to question defendant at all, but merely watch and observe.  After observing defendant for about an hour as a surgical resident treated him, Dr. Patterson finally introduced himself to defendant, telling him that the DA’s Office had asked him to come and talk with him. Defendant responded: “Great.”  After providing defendant with a very abbreviated version of a Miranda admonishment (despite being supplied with an admonishment card), defendant told Patterson “I don't think so,” and that he’d rather talk to an attorney first.  Acknowledging that that was his right, Patterson told him said that he’d just hang around for a while should defendant change his mind.  About 20 minutes later (during which time defendant had x-rays of his chest taken), after noticing that Patterson was still in his room, defendant said: “Still here, huh ”  Defendant then asked Dr. Patterson; “You wanna talk about it ”  When Dr. Patterson responded; “Sure,” defendant dictated the terms of their discussion, telling Dr. Patterson:  “I’ll talk, and you can listen,” and; “Cause you, you don’t mind, and we could just talk about what has happened or something.”  So defendant began talking about the shooting and the kidnapping although Patterson helped him along with a few questions. During the ensuing discussion, defendant made a number of incriminating comments to the effect that he had in fact kidnapped A.G. and intentionally shot Deputy Aguirre.  At no time during this discussion was he readvised of his Miranda rights nor was an express waiver ever obtained.  On trial in state court for murder (with special circumstances) and kidnapping, defendant’s incriminating statements were used against him over his objection.  Convicted and sentenced to death, defendant’s appeal to the California Supreme Court was automatic.

The California Supreme Court, in a split (5-to-2) decision, affirmed.  Among the issues on appeal was the admission into evidence of defendant’s incriminating statements made to the psychiatrist; Donald Patterson.  In discussing this issue, the Court considered three questions: (1) Whether law enforcement’s earlier contacts with defendant violated his Miranda rights; (2) whether defendant (as opposed to Patterson) initiated the conversation that resulted in his confession; and (3) whether he did so following a knowing and voluntary waiver of  his previously invoked Miranda rights.  Defendant’s argument on appeal was that law enforcement (Patterson being an “agent of law enforcement”) violated his Miranda rights ((1966) 384 U.S. 436) by allowing Dr. Patterson to question him after he had invoked his right to silence.  He also complained that his right to an attorney, as protected under Edwards v. Arizona (1981) 451 U.S. 477, had been violated.  A Miranda violation, of course, makes inadmissible in court any statements obtained by law enforcment from an in-custody suspect absent a prior advisal of rights and a knowing and intelligent waiver of those rights.  It is permissible, however, for law enforcement to later return as ask that suspect if he’d changed him mind about invoking his right to silence.  In Edwards, the U.S. Supreme Court took it a step further, establishing the stricter “bright-line” rule to the effect that once an in-custody suspect invokes his right to the assistance to counsel (as opposed to merely remaining silent), law enforcement personnel may not resume an interrogation on their own initiative until counsel is provided, the defendant is released from custody, or the suspect himself reinitiates the questioning.  The People in this case argued that it was defendant himself who reinitiated the questioning which, if so, allows law enforcement to begin questioning anew.  While finding it a “close case,” a majority of the Supreme Court upheld the trial court’s finding that defendant had freely and voluntarily reinitiated the questioning himself.  But this was made a “close case” because of a number of important factors.  First, psychiatrist Patterson (again, as a police agent) never readvised defendant of his Miranda rights after their initial contact when defendant had invoked.  Secondly, defendant never specifically told Dr. Patterson that he had changed his mind. Third, helping to make this an even closer case was the fact that defendant had invoked his right to silence and/or the assistance of counsel no less than five times in the span of three to three and a half hours before and during his conversation with Dr. Patterson.  The Court mentioned several times that it found the practice of ignoring a defendant’s repeated invocations “trouble(ing).” (“(W)e are troubled by the earlier law enforcement conduct.”)  And lastly, also complicating the issue somewhat, was Detective Young (understandably) losing his professional bearing at one point, angrily chastising defendant for having murdered Deputy Aguirre.  Despite all this, however, the Court determined that it was defendant himself who had reinitiated the conversation with Dr. Patterson, while impliedly waving his rights, thus making his subsequent incriminating statements admissible against him at trial. In reaching this conclusion, the Court noted a number of significant factors.  First, the district attorney had a legitimate purpose in enlisting Dr. Patterson’s aid; i.e., to observe defendant and gather information relevant to his mental state even if defendant did not wish to volunteer any statements.  Defendant admittedly had some mental issues, having been in and out of metal hospitals over the years and having been diagnosed at least once before as schizophrenic. Simply observing defendant, without questioning him, violates neither Miranda nor Edwards. In connecting Dr. Patterson up with defendant, it was also noted that the district attorney set this up not knowing that defendant had invoked his right to counsel. But even if defendant’s prior invocation to the assistance of counsel had been known, there was no violation in connecting Dr. Patterson up with defendant simply for the purpose of observing him.  Then, when defendant told Dr. Patterson that he did not wish to speak with him, Dr. Patterson immediately complied, telling defendant he was just going to hang around in case he later changed his mind.  When, some 20 minutes later, defendant saw Dr. Patterson doing just that, it was defendant—not Dr. Patterson—who reinitiated the conversation: “Still here, huh ”  And then, after some pauses, defendant reconfirmed his desire to talk about the shooting, asking Dr. Patterson; “You wanna talk about it ”  Dr. Patterson did nothing other than hang around to provoke this mind-set on the part of defendant.  From the point that defendant verbally reinitiated the conversation, the Court noted that he “controlled the conversation, directed the conversation and took it to the places he wished to go.”  The Court further found that the initial taint of previous Miranda violations did not necessarily require a finding that defendant was legally incapable of reinitiating the questioning, but rather that an evaluation of this issue depends upon a consideration of all the surrounding circumstances.  While it is a rule that a defendant’s decision to talk with police is ineffective if it is found to be the product of “badgering,” or “overreaching,” on the part of the police, the Court found no such undue pressure in this case.  Neither the mere fact of Dr. Patterson hanging around, nor even Detective Young’s act of dressing down defendant over killing a law enforcement officer, were sufficieint to cause an otherwise unwilling defendant to reinitiate the questioning.  To the contrary, “(T)he record, particularly the audio recording of defendant’s conversation with Patterson, reflects defendant’s ‘clear willingness and intention to talk’ to Patterson.”  In making this finding, the Court found it significant that the tape-recorded discussion was a “low-key, very, very calm, rational—perhaps unnervingly so—discussion of what transpired.”  Further, Dr. Patterson mostly listened, asking only occasional questions as defendant himself directed the conversation and what topics were to be discussed.  Lastly, defendant himself was fully aware he was providing information that might be used against him, yet he viewed the tradeoff a worthwhile one, mentioning several times that his yet-to-be-appointed attorney was going to be pissed.  Defendant’s statements taken as a whole showed he was making a deliberate decision to speak with Dr. Patterson because he determined on his own that it was “best to be honest.”  So where is the waiver, one might ask   Noting that it is always best in such a case—where a defendant is alleged to have reinitiated a wavier after invoking his rights—to have in evidence a new admonition of rights and an express waiver of those rights, neither is absolutely required where the record clearly establishes that the defendant was fully aware of those rights and, while understanding those rights, it can be said that he intended to waive those rights, at least by implication.  “[A]n express waiver is not required where a defendant’s actions make clear that a waiver is intended.”  The Court found this to be one of those “unique” cases.  As already noted above, the record established that defendant made a conscious choice to talk to Dr. Patterson while knowing that he was entitled to the assistance of counsel, and while also knowing that he was acting against his own legal interest when he did so.  Thanks to the recording of the interview, the Court was able to conclude that defendant was calm and in control throughout his discussions with Dr. Patterson, during which the incriminating statements at issue here were uttered. The record also made it clear that defendant fully intended to waive his rights despite the lack of any express waiver stating so.  As such, the Court upheld the trial court’s rulings to the effect that defendant’s incriminating statements, made after he himself reinitiated his own interrogation with a full understanding of the rights he was giving up by talking with Dr. Patterson, were admissible in evidence. 

Note that the Court refers to this case being “unique.” That’s probably an understatement.  At the very least, it should be taken as a gentle hint that should you attempt to walk the same tightrope in some future investigation, don’t expect the same result.  And this case is indeed unique in that generally, whenever a criminal defendant has invoked his rights, but is thinking about changing his mind, it is always best to provide him with a whole new Miranda admonishment and obtain an express waiver of those rights (See In re Z.A. (2012) 207 Cal.App.4th 1401, 1417-1419.)  Also note the Court’s comments about being “troubl(ed” by the officers pestering defendant with repeated attempts to get him to waive his rights.  I know that some Miranda “experts” in this state openly espouse the theory that because a simple Miranda violation does not in fact also violate the Fifth Amendment (See Oregon v. Elstad (1985) 470 U.S. 298, 305.), and that at the very least, any admissions made by the defendant in response to an interrogation conducted in violation of Miranda are likely to provide the prosecution with some very valuable impeachment evidence (Harris v. New York (1971) 401 U.S. 222.), that it’s okay to ignore a defendant’s attempt to invoke and just keep on questioning him.  However, the California Supreme Court has repeatedly condemned such an interrogation technique.  (See People v. Nguyen (2015) 61 Cal.4th 1015, 1075-1077.)  Indeed, repeated Miranda violations can at some point degenerate into a Fifth or Fourteenth Amendment “due process violation.”  (People v. Neal (2003) 31 Cal.4th 63.)  This current case does not even come close to that; the officers here (1) being in the throes of a highly emotional situation having just lost one of their own, (2) checking back with defendant for the sole purpose of seeing if he had changed his mind after he’d indicated that he might, and (3) the DA sending in Dr. Patterson unaware that defendant had invoked his more restrictive right to counsel.  So don’t feel you can use this case as authority for ignoring one’s Miranda rights, nor cajoling him into changing his might about a prior invocation.  The judges in your case may not be nearly so forgiving.