Talking an In-Custody Suspect into Changing his Mind Concerning a Prior Invocation
- Miranda and a Suspect’s Invocation of his Right to Counsel
- Understanding the Miranda Right to Counsel
- Badgering a Suspect Out of an Invocation
Indications that an in-custody suspect does not understand what benefits there may be to the assistance of counsel may negate that suspect’s waiver of his Miranda rights. An in-custody suspect who invokes his Miranda rights has the option of changing his mind. Encouraging an in-custody suspect to change his mind about his prior invocation (i.e., “badgering”), however, may negate that change of mind.
Eighteen-year-old defendant Ismael Avalos had an on-going dispute with Angel Rivera, both alleged members of opposing criminal street gangs. Their dispute was only aggravated when Rivera took up with Avalos’ ex-girlfriend; A. Albarran. Defendant at the time of this case was a high school student, still living with his parents, who had no prior criminal record except for “some dumb thing” (not otherwise described) he’d done as a minor. On May 25, 2012, defendant spent the afternoon drinking beer in his family’s garage with a friend; George Galvan. After apparently drinking all day, Galvan drove defendant and several other homies to a cul-de-sac—Mayfair Street, in Anaheim—where some 15 to 20 other young people were hanging out. Amongst the group at the cul-de-sac were Rivera and Albarran. Without warning, defendant and another companion walked up to Rivera, drew firearms from their respective waistbands, and fired twice each, killing Rivera with a gunshot wound to the head. Defendant and the companion ran back to Galvan’s car and went home, defendant bragging to Galvan that he’d “lit some fool up,” and “dumped on someone.” An investigation quickly led to defendant as one of the shooters, resulting in his arrest the next day. He was taken to the Anaheim Police Department where he was questioned by Detectives K. Schroepfer and J. Trapp in separate videotaped interviews. Det. Schroepfer started off the interrogation during which defendant was handcuffed to a table. Without beating around the bush, Det. Schroepfer read defendant his Miranda rights at the very beginning of the questioning. The detective obtained defendant’s acknowledgement that he understood each of the rights, one by one, as she read them to him. (Good interrogative technique, by the way.) However, when told that he had “the right to the presence of an attorney before and during any questioning,” and asked if he understood that right, defendant said in response; “What do you mean an attorney like . . .” (The remainder of this comment was unintelligible, with the detective and defendant talking over each other.) After Det. Schroepfer re-read the admonition, defendant asked: “That means that (unintelligible) someone can tell me something like (unintelligible).” The detective responded: “Like an attorney.” When pressed for a yes-or-no response, defendant finally said he understood. Upon completion of the advisal (and without asking for an express waiver), Det. Schroepfer began the interrogation. For the next five hours of questioning—first by Det. Schroepfer and then Det. Trapp—defendant denied any involvement in the murder except to admit that he had been present at the scene. This interrogation was interrupted at one point so that a forensic technician could take defendant’s clothing, giving him a paper gown to wear. The interrogation was later interrupted again so that defendant could speak with his parents who, upon defendant’s continued denial of guilt, told him that they were going to get him an attorney. When Det. Trapp renewed her interrogation—playing on his mother’s crying as she left the police station—defendant commented; “I can't talk to a lawyer or nothing or what ” When told that he could, defendant invoked his right to the assistance of counsel. Specifically: “Can I talk to a lawyer? . . . Yeah. That's what I wanna do. I wanna talk to a lawyer.” Defendant then asked; “Think that’s a good choice or not Det. Trapp responded with: “That’s, that’s . . . I, I can't make that choice for you. That's something that you have to decide.” But then, after telling defendant she (Det. Trapp) was going to take him down to the bathroom, she continued on: “You know what, go down (sic) you think about it, you know, if you think that’s the right choice for you, great, you know.” She then added: “All I’m saying is, is, is I respect your decision that you wanna talk to a lawyer, but if for some reason you change your mind and you wanna talk to me, you can, just ask for me. I don't care if it's 2:00, 3:00 in the morning I’ll come back. Okay? Because I care about you getting your story the right way out. Okay ” The next day, while still in an Anaheim P.D. holding cell and still in his paper gown, defendant told the jailer that he wished to talk to the detectives again. So he was brought back up to the same interrogation room. A third detective— Det. S. Wyatt—first contacted defendant there. After insuring that defendant was warm enough (still in his paper gown, without shoes or socks, and having spent the night in an apparently cold holding cell), and that he was “good with (his) drink,” defendant indicated that he had a question. Defendant then asked: “Whatever I tell my lawyer, he's going to tell you the same thing, right ” Det. Wyatt responded: “Not necessarily, I . . . (unintelligible) umm, I want to talk to you about that.” Det. Schroepfer took over for Det. Wyatt, verifying that he had told Det. Trapp the evening before that he wanted to talk to a lawyer before proceeding. Defendant then asked: “It make a difference if I talk to a lawyer first or you guys ” Det. Schroepfer responded: “You know, I can’t tell you either way, it, that makes, you know, that’s your decision but since you did asked (sic) for a lawyer, I want to understand is you contacted umm one of the jailers and asked to talk to the detectives again. [[sic]]. Is that right ” Defendant responded: “Yes.” After verifying that the decision to talk to the detectives was of his own “free will” and that no one was “forcing” him, or that he had been “promised . . . anything,” Det. Schroepfer re-read defendant his Miranda rights, getting a statement of understanding after each right was recited, including his “right to the presence of an attorney before or during any question (sic).” Defendant responded with an unequivocal “yes” to this question. Again without an express waiver (see Note, below), defendant then proceeded to admit to shooting Rivera, but claimed it was in self-defense; that it appeared that Rivera was about to draw a weapon, and that he “fear(ed) for my life,” so he “just shot him.” Per defendant: “I self-defended myself, you know ” After some further discussion concerning his prior history with Rivera, and who the other shooter might have been, defendant eventually invoked his right to counsel again (“I don't want to say anything more until I see my lawyer.”), ending the interrogation. Charged in state court with murder, defendant’s recorded confession (or more correctly, “admissions,” in that while he admitted to killing Rivera, he claimed it was in the lawful exercise of his right to self-defense) were allowed into evidence against him. He was convicted and appealed.
The Fourth District Court of Appeal (Div. 3; Orange County) reversed. On appeal the issue was whether defendant’s confession should have been suppressed. The basic rules related to the Miranda decision are well settled. Before questioning an in-custody suspect, he must first be advised of, understand, and waive, his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) “To establish a valid [Miranda] waiver . . . , the prosecution must show . . . the waiver was knowing, intelligent, and voluntary. . . . Determining the validity of a Miranda rights waiver requires ‘an evaluation of the defendant’s state of mind’ [citation] and ‘inquiry into all the circumstances surrounding the interrogation.’” (People v. Nelson (2012) 53 Cal.4th 367, 374-375.) If at any point during the interrogation the suspect indicates that he wants to speak to an attorney, the police cannot question him any further “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Italics added: Edwards v. Arizona (1981) 451 U.S. 477, 484-485.) The issue here was whether defendant himself reinitiated the interrogation, or was it at the behest of Det. Trapp. It was undisputed here that defendant clearly and unequivocally invoked his right to counsel when he said: “That’s what I wanna do. I wanna talk to a lawyer.” Upon doing so, Det. Trapp properly terminated the interrogation. But in so doing, she also told defendant that should he change his mind, she was available at any time to come back and talk to him. As a general rule, there is nothing wrong with letting an in-custody suspect know, after an invocation, that he can change his mind so long as it is clear that it is the defendant’s decision—without being influenced by law enforcement—as to whether he chooses to do so. But there is a thin line between so informing a suspect and improperly encouraging (sometimes referred to as “badgering”) a suspect into changing his mind. “‘(A) change of mind prompted by continued interrogation and efforts to convince the defendant to communicate with the officers’ cannot be considered a voluntary, self-initiated conversation.” (Quoting People v. McClary (1977) 20 Cal.3rd 218 at pp. 226-227.) In the unique circumstances of this case, it was noted that from the very beginning, defendant (an 18-year old high school student with no criminal history) seemed to have some difficulty understanding that portion of the Miranda advisal related to his right to the assistance of counsel. (“What do you mean an attorney like (unintelligible) . . .”) Later, before invoking, defendant continued to express some confusion concerning his right to an attorney, telling Det. Trapp: ““I can't talk to a lawyer or nothing or what ”; a question that was never really answered for him. The next morning, defendant still seemed confused as to the role an attorney might play. (“Whatever I tell my lawyer, he's going to tell you the same thing, right ” And: “It make a difference if I talk to a lawyer first or you guys ”) The Court was particularly critical of Det. Trapp’s comments made upon defendant’s initial invocation, where she told him: “(B)ut if for some reason you want to change your mind and you wanna talk to me, you can, just ask for me. I don't care if it's 2:00, 3:00 in the morning I'll come back. Okay Because I care about you getting your story the right way out. Okay " (Italics in original) Such encouragement, at least under the circumstances of this case, was a bit too much for the Court, tipping the scale in the direction of an improper attempt to talk defendant into changing his mind after his otherwise clear and unequivocal invocation. In finding that Det. Trapp pushed a bit too hard by telling defendant that he could always change his mind about his invocation, while emphasizing that she wanted to help him get his side of the story out, the Court further summarized its conclusions as follows: “Here, given Avalos’s state of mind and the surrounding circumstances (Avalos was in high school with no record of prior arrests, his confusion about the role of a detective versus a lawyer, the apparent coldness, his clothes being taken away, and he . . . wearing a paper gown), we find Avalos did not make a voluntary, knowing, and intelligent Miranda waiver prior to the second interview. Further, given the detective’s statement encouraging Avalos to speak to her because she cared about him getting his ‘story the right way out’—after he had invoked the right to counsel—it appears the detective, rather than Avalos, initiated the second interview.” For these reasons, the Court held that defendant’s confession should have been suppressed. Finding that the trial court’s failure to suppress his confession was prejudicial, the Court reversed his conviction and remanded the case back to the lower court for retrial.
There were actually two issues central to this case: (1) Whether defendant’s Miranda waiver was “knowing and intelligent” when he repeatedly expressed some confusion about what his right to the assistance of counsel entailed. (2) Was he “badgered” into changing his mind about invoking his rights The first issue was kind of lost in all the verbiage of this case while the second was discussed in excruciating detail. In the end, I’m not so sure I agree with the results of this case, nor its nitpicking. But either way, the circumstances underlying defendant’s change of mind about his initial invocation are important to note. It would have helped, for instance, had the detectives recognized his apparent confusion concerning his right to counsel and what an attorney could do for him. A more thorough explanation (assuming a police interrogator explains it clearly and correctly) might have resolved that issue. It would also have helped had Det. Trapp not laid it on quite so thick that he (defendant) could always change his mind and that she was available to come back 24/7 to talk to him, while telling him that she wanted to help him get his side of the story out. I’m not criticizing either detective here, by the way. They did everything by the book (and more) as they understood it, and as they have been trained. However, they did create a third issue that wasn’t even discussed by the Court, apparently not having been contested by the defendant. In both admonishments, defendant’s interrogators relied on “implied waivers,” not having asked for an “express waiver” (i.e., “Having in mind, and understanding your rights, are you willing to talk to us ). More times than not, we can get away with an implied waiver. But when you’re dealing with an 18-year-old high school student with no prior adult criminal record, particularly when he doesn’t appear to be the sharpest tool in the shed and is clearly in over his head, it is an issue whether or not he really was agreeing to waive his rights merely from the fact that he did in fact answer an interrogator’s questions. (E.g., see People v. Rios (2009) 179 Cal.App.4th 491; “A court should look at whether the minor ‘was exposed to any form of coercion, threats, or promises of any kind, trickery, or intimidation, or that he was questioned or prompted by . . . anyone else to change his mind.’ (Citation)” (pg. 500.) But on the issues this case decision does cover, the Court’s conclusions are really a bit of a surprise, given the detectives’ honest attempt to do everything correctly and legally. It does demonstrate, however, how thin that line is between merely telling a suspect that you (as his interrogator) are available should he change his mind, and “badgering” him into doing so. So I’d continue to tell a suspect that he has the right to change his mind about an invocation, but supplementing that admonition with no more than merely giving him your business card. Certainly do not try to elaborate on some alleged benefits to changing his mind. Keep it short, simple, and to the point, and you should be okay.