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 ....