To Invoke or Not to Invoke: That is the Question
By Robert C. Phillips
DDA; Retired
Perhaps influenced by television’s often perverted cop-show portrayals of the typical custodial interrogation situation, it is easy to forget the United States Supreme Court’s invariably unforgiving requirement that whenever an in-custody criminal suspect indicates in any manner that he wishes to remain silent, an interrogation must cease, “scrupulously honoring” the suspect’s right to remain silent.[1] Similarly, should that same suspect state that he wants the assistance of an attorney, no more questioning is permitted until an attorney is provided.[2]
Frequently, the problem is how to interpret the suspect’s often poorly expressed attempt to invoke, weighing indecipherable expressions of uncertainty. Two recent Ninth Circuit Appellate Court cases provide some guidance on this issue. And although perhaps stricter than what California Courts might hold, and in fact did so here, both cases are well worth the time to review.
In Garcia v. Long, [3] sixteen year-old Jane Doe reported that her step-grandfather, Francisco Garcia, had been molesting her since she was six or seven years old. The reported molestations consisted of her being forced to perform oral sex on Garcia some ten to fifteen times per month, and sexual intercourse once or twice a year. As a result, detectives with the Moreno Valley Police Department brought Garcia into the police station for questioning.[4]
The detectives initially asked Garcia some innocuous preliminary “booking questions,” including whether he went by any other names or had ever been arrested. Garcia initially answered “no” to both questions, but then proceeded to volunteer additional information to the effect that he’d used another name once in the past and that he had also been detained and released on a prior occasion.[5]
He was then read his Miranda rights, which he said he understood. But when asked; “Okay, now having that [i.e., your Miranda rights] in mind, do you wish to talk to me?”, Garcia answered with a simple “No.” Perhaps believing from Garcia’s prior denials to having used another name and to having been arrested before, both of which were immediately followed up with more complete answers, that “no” to Garcia did not necessarily really mean “no,” the detectives pressed on. A perhaps somewhat perplexed detective therefore responded to Garcia’s “no” with a questioning “No?” of his own.[6]
Garcia answered the detective’s question with a long-winded, disjointed recitation, indicating that he was unsure of what to do without knowing what he was being accused of, that he didn’t “know what was going on,” and that he wanted to hear why he had been brought in to the police station. After telling Garcia that Jane Doe was claiming that he had sexually abused her, one of the detectives reminded Garcia he had said that he didn’t want to talk to them, adding; “(S)o is it my understanding right now that you do want to talk to me then?” After some more equivocating from Garcia concerning what the detectives had told him about remaining silent and getting an attorney, the detective finally cut to the chase, asking Garcia point blank whether or not he wanted to talk. Garcia finally relented, saying: “Yeah, we can talk, yeah, I guess, why not.”[7]
After some three hours and 45 minutes, Garcia finally admitted to three sexual occurrences, although laying the blame on Jane Doe. At the detective’s suggestion, however, Garcia wrote out an apology to Jane, telling her he never meant to hurt her and that she was not “guilty of anything.” At the end of the interview, Garcia was placed under arrest.[8]
Charged in California state court with committing lewd and lascivious acts on a child plus a count of forcibly raping a minor, Garcia’s entire taped interview and his written apology to Jane were introduced into evidence over his objection. Convicted of all counts, Garcia appealed. His conviction was upheld by the California Court of Appeal, the Court ruling that taking into account his statements before and after he said that he did not want to waive his rights, his “no” might not have really meant “no,” and that the detectives acted properly in seeking clarification. After the California Supreme Court denied review, Garcia filed a petition for writ of habeas corpus in the federal District Court. The District Court granted the writ, reversing the Garcia’s conviction. The People appealed.[9]
About the time Garcia was fighting his legal battles, Darious Mays and his older brother, as later reported in the Ninth Circuit’s decision of Mays v. Clark,[10] were hanging around a Sacramento AM/PM minimart store early one morning, thinking about scoring some weed. At the same time, Sheppard Scott and his girlfriend drove into an adjacent Jack In the Box restaurant parking lot. Not knowing that he had only minutes to live, Sheppard waited in line at the drive-up window as Mays walked up the couple’s car, asking Scott if he had any marijuana to sell. Scott told him no. However, apparently something else was said that upset Scott because he got out of his car and engaged Mays and his brother in an “animated conversation” during which Scott felt the need to claim a gang affiliation.[11]
The discussion seemingly over, Scott returned to his car, made his purchase, and prepared to drive away. But before leaving the parking lot, approached Scott and his girlfriend, indicating that he wished to apologize. As Mays extended his hand as if to shake on it, he suddenly pulled out a gun and shot Scott six times, killing him. Much of this incident was captured on surveillance cameras in the area.[12]
The investigation of Scott’s murder eventually led to Mays who was arrested a little more than two weeks later. Upon being arrested, in a videotaped interrogation, a detective interviewed Mays after first advising him of his Miranda rights which Mays said he understood. Despite being shown a photograph from the surveillance videos depicting the shooter in a hooded sweatshirt, who appeared to be Mays, he repeatedly denied being involved. He did volunteer, however, to take a polygraph exam.[13]
Finally, Mays told the detecive: “Look. Can I—can I call my dad so I can have a lawyer come down ‘cause I’m—I‘m telling you, I‘m . . .” Apparently not hearing what Mays had said, the detective asked; “Call who?” Mays responded that he wanted to call “my step-dad ‘cause I‘m—I‘m going to tell you I'm going to pass that test a hundred percent.” After telling Mays that they didn’t need his step-dad, Mays then said: “He got my lawyer.” Still not sure what defendant was talking about, the detective asked who was his lawyer. To this, Mays responded; “My—my step-dad got a lawyer for me.” Wisely sensing that this may become a Miranda issue, the detective sought clarification, asking: “Okay. So what do you want to do with him?” Mays then responded: “I‘m going to—can—can you call him and have my lawyer come down here?”[14]
The detective’s immediate response was unintelligible, but the conversation reverted back to Mays’ denial to even being at the scene of the shooting and his wish to take a lie-detector test. Still unsure whether Mays was attempting to invoke, the detective sought clarification as to whether defendant wanted the assistance of counsel or to take a polygraph test, to which defendant clearly and unequivocally responded: “I want a lie detector test.”[15]
With no polygraph examiner being available, the detective set up a “mock polygraph” test where, with body patches and wires connected to him, a fake test was administered and fabricated written results were produced. Showing this to Mays, telling him that he’d failed the test, Mays eventually made admissions to at least being at the scene of the shooting and that he was in fact the person depicted in the surveillance videos.[16]
With the videotape of his admissions being introduced into evidence at his subsequent trial in state court for murder, Mays was convicted of first degree murder with a “lying in wait” special circumstance and a firearm-use enhancement. Sentenced to life in prison without the possibility of parole, plus a consecutive 25 years for the use of a firearm, Mays appealed. California’s Third District Court of Appeal affirmed, ruling that Mays’ request for a lawyer was ambiguous, thus allowing the detective to seek clarification.[17]
The California Supreme Court denied review and a state petition for a writ of habeas corpus was denied. Filing another habeas corpus petition, this time in the federal district court, it was ruled that Mays had in fact invoked his right to counsel and that his subsequent continued interrogation was illegal. However, the court also ruled that use of Mays’ admissions was harmless error, thus affirming his conviction. Mays appealed this ruling to the Ninth Circuit Court of Appeal.[18]
The Ninth Circuit affirmed the district courts’ rulings in both cases, holding in Garcia v. Long that “no” does in fact mean “no,” and in Mays v. Clark that asking a police interrogator, “can you call him (his step-father) and have my lawyer come down here?” is a clear and unequivocal invocation of the right to counsel.
In analyzing the issue in both cases, the Ninth Circuit first reiterated the clear rule that a suspect’s right to cut off police questioning is triggered when the suspect unambiguously and unequivocally invokes his rights by telling officers that he either wishes to remain silent or to have the assistance of a lawyer.[19] Francisco Garcia did so when he unequivocally said “no;” he did not wish to waive his right against self-incrimination. Mays did the same when he asked his interrogators to have his step-father bring his attorney to the station.
The People on appeal in the Garcia case argued that when taken in context—Garcia’s earlier admitting to the detectives that he had used a false name once in the past, and that he in fact had been detained and released once before; both after first saying that he had not—indicated that “no” did not necessarily mean “no.” Also, after his alleged invocation, Garcia admitted that he was only reluctant to talk with the detectives because he didn’t understand what was going on or with what he might be charged. Under these circumstances, the People submitted, a reasonable officer could well have believed that Garcia’s “no” only meant that he might still be willing to waive his rights after receiving some further information.[20]
As for his pre-admonishment statements, where he volunteered further clarification after claiming that he was not using a false name and that he had never been arrested, the Court held that although the context of an invocation may be relevant in determining whether a suspect’s attempt to invoke was ambiguous, supplemental volunteered responses to pre-admonishment questions may not be used as an excuse to later badger the suspect into waiving his rights after he unambiguously invokes his right to silence. And even if Garcia’s earlier comments could be used to dilute the effectiveness of his later invocation, in this case, Garcia did not admit to currently using a false name, which was the question he was asked. He only admitted to having used a false name once in the past. And he never admitted to having been arrested; only detained and released. The Court, therefore, found that Garcia’s volunteered clarifications to his earlier negative responses were not contradictory and not relevant to what he might have meant when he invoked.[21]
As for Garcia’s post-invocation statements, the rule is quite clear that once a subject unequivocally and unambiguously invokes, the questioning must cease. Officers are not allowed to attempt to muddy the waters by asking a suspect why he wishes to invoke, or whether he is sure.[22] “Where nothing about the request . . . or the circumstances leading up to the request would render it ambiguous, all questioning must [15] cease.”[23] In such circumstances, the Court held, it is improper for an officer to attempt to clarify the request. There was nothing to “clarify.” With Garcia having effectively invoked his right to silence, the detectives should have “scrupulously honored” his invocation and ceased questioning at that point. Having failed to do that, his subsequent statements, as well as his written apology to the victim, should not have been admitted into evidence.[24]
In Mays v. Long, the Ninth Circuit Court struggled a bit more, but eventually agreed with the federal district court that Mays had effectively invoked his right to counsel and that the interrogation should have been stopped at that point, although because the error was harmless, the conviction should be upheld.
It is a well-established rule that once an accused, during his interrogation and despite an earlier waiver, “express(es) his desire to deal with the police only through counsel, (he) is (no longer) subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”[25] As in Garcia, a “right to silence” case, it is also a well-established rule that “the suspect's ‘postrequest responses to further interrogation may not be used to cast doubt on the clarity of his initial request for counsel.’”[26]
In this case, it is apparent that when Mays first indicated that his step-father had a lawyer for him (i.e., “Look. Can I—can I call my dad so I can have a lawyer come down ‘cause I’m—I‘m telling you, I‘m . . .”), the detective didn’t hear him. So, as the trial court did, the Ninth Circuit Court ignored this first mention of a lawyer. But then shortly thereafter, after Mays mentioning the “L” word (i.e., “Lawyer”) a couple of more times, he finally said: “I’m going to—can—can you call him and have my lawyer come down here?” This clearly was an invocation of his right to counsel, per the Court.[27]
And even though Mays was still intermingling this with his request to take a polygraph test, the detective should have understood it to be an invocation and the questioning should have ceased. Further attempts to insure that defendant was in fact attempting to invoke were inappropriate. An officer seeking clarification is only justified in doing so where the previous attempt to invoke was equivocal and ambiguous. Defendant’s responses to those attempts cannot be used as an argument that his previous request for the assistance of counsel wasn’t clear and unambiguous. [28]
With every circumstance being inherently different, it is perhaps expecting a lot for a law enforcement interrogator to be able to recognize as an invocation or not an invocation a situation where the courts, with the luxury of hindsight and time to thoroughly research the issue, are not even in agreement. The Mays Court, for instances, fixated on the exact wording of Darious Mays’ invocation, i.e.; “ . . . have my lawyer come down here,” pulling it out of everything else that was going on and labeling it as a clear and unequivocal invocation. That, of course, is not so easy when you’re face to face with a cold-blooded murderer who is jumbling his ramblings with talk about proving himself innocent through a polygraph and calling his step-father. And in Garcia, you have a suspect who would inevitably follow up every “no” with a “but . . . ,” which would seem to cause a reasonable officer to question what the suspect was trying to say. But it is what it is. In the meantime, all we can do is add Garcia and Mays to the mounting list of cases in the seemingly never ending state and federal courts’ attempts to fine-tune a perhaps undefinable issue.
[1] Miranda v. Arizona (1966) 384 U.S. 436, 474;
Michigan v. Mosley (1975) 423 U.S. 96
[2] Maryland v. Shatzer (2010) 559 U.S. 98, 104
[3] (9th Cir. Dec. 21, 2015) 808 F.3rd 771
[4] Id., at p. 773
[5] Id., at p. 779
[6] Id., at p. 774
[7] Ibid.
[8] Ibid.
[9] Id., at pp. 775-776
[10] (9th Cir. Dec. 8, 2015) 807 F.3rd 968
[11] Id., at pp. 874-
[12] Ibid.
[13] Id., at p. 971
[14] Id., at pp. 971-972
[15] Id., at p. 972
[16] Id., at p. 973
[17] See People v. Mays (2009) 174 Cal.App.4th 156
[18] Garcia v. Long, at p. 970
[19] Miranda v. Arizona, supra, at p. 479
Maryland v. Shatzer, supra.
Davis v. United States (1994) 512 U.S. 452, 461
[20] Garcia v. Long, supra, at pp. 779-781
[21] Ibid.
[22] People v. Peracchi (2001) 86 Cal.App.4th 353
[23] Garcia v. Long, supra, at p. 78; Quoting Smith v. Illinois (1985) 469 U.S. 91, 98
[24] Garcia v. Long, supra, at pp. 778-779
[25] Edwards v. Arizona (1981) 451 U.S. 477, 484-485
[26] Smith v. Illinois, supra.
[27] Mays v. Clark, supra, at pp. 978-979
[28] Id., at p. 979
