Reinitiating an Interrogation after Invoking Miranda
Robert C. Phillips
DDA Retired
May, 2014
Dewey Joe Duff had his problems. Not being the sharpest tool in the shed, and with four prior trips to prison, his social skills weren’t what some might consider the best. For instance, when Roscoe Riley stiffed him on a narcotics deal, all Duff could think about was to retaliate. Duff was going to get satisfaction, or die trying.
Duff, it seems, had traded Riley a .357-caliber handgun in exchange for what was to be $100 or its equivalent in methamphetamine. But Riley never delivered the dope or the money, “disrespecting” Duff by refusing to complete his end of the transaction.
Duff told several people, including his girlfriend, Cynthia Fernando, that he was going to set up another drug deal with Riley but then steal Riley’s drugs and jewelry, and then kill him in the bargain. On the evening of February 23, 1998, Duff implemented his plan. However Riley, perhaps suspecting that Duff had an ulterior motive, complicated things by bringing Brandon Hagan along. But Duff wasn’t deterred.
Duff, Riley, and Hagan were on the way to complete the contemplated drug transaction when Duff asked to stop for a restroom break. With Riley driving, they parked in the parking lot of Taylor’s Corner Bar in Sacramento where Duff went inside to relieve himself. When he came back out, witnesses observed him walk up to the car and shoot Riley and Hagan, who were still sitting in the car. Duff was then observed pushing Riley’s lifeless body aside and driving the car away. As they drove away, witnesses heard another shot which Duff later admitted was him putting one more bullet into one of the victims who was still moving.
Duff drove to the home of some friends with whom he was staying, parked the car still containing the two bodies in a vacant lot behind the house, and went in to change his clothes. He called Cynthia Fernando, who came to the house. Wiping the blood off of a .357-caliber revolver, Duff told her that he had just killed two people. He gave her the methamphetamine he’d taken from the victims. Fernando also helped him dispose of jewelry and guns that had belonged to the victims.
The next day, February 24th, and before the discovery of the bodies, Duff was observed by police walking down the street near where his mother lived. Thinking he might be a subject with outstanding warrants that they’d been looking for, the officers attempted to contact him. Duff ran, but was eventually caught and, after a brief struggle, subdued. A consensual search of Duff’s mother’s residence resulted in the recovery of some ammunition.
With the police still unaware of his connection to the shooting at Taylor’s Corner Bar, and not yet having found the victims’ bodies, Duff was held on charges of being a felon in possession of ammunition. A search of the area where Duff was arrested resulted in the recovery of the .357-caliber revolver with blood still in its chambers. With Duff still in custody for being a felon in possession of ammunition, the victims’ bodies were finally found when officers responded to an anonymous tip.
On February 26th, detectives finally questioned the still in custody Duff about the murders. Detective Toni Winfield advised him of his Miranda[1] rights, which he said he understood. But when she asked him if he wished to waive those rights and speak with her about the murders, Duff responded: “I don’t know. Sometimes they say it’s—it’s better if I have a–a lawyer.” Detective Winfield agreed that “sometimes they do,” but explained to him that while it was “entirely up to you,” this was his opportunity to give her his side of the story. She also explained to him (in a somewhat disjointed manner) that he could stop the interview at any time or decline to answer any specific questions. She then asked him again whether he understood and whether he wished to talk with her at that point. Duff indicated that he did understand and that he was willing to talk. But after less than an hour, he indicated that he wanted to halt the interrogation, saying that he was “kind of numb,” and “brain boggled.” So Detective Winfield, complying with the dictates of Miranda v. Arizona,[2] cut off the questioning.
As she was preparing to leave, however, Duff asked if he could talk to Detective Dick Woods instead. Detective Woods was summoned and reinitiated the questioning some 23 minutes later. Without a new Miranda advisal, and after some small talk and an intervening bathroom break, Duff proceeded to admit to Detective Woods that he did in fact shoot the two victims but claimed that it was in self-defense.
Charged in state court, his admission to shooting the victims was used against him. He was eventually convicted of two counts of first degree murder with the special circumstances of multiple murders and murder committed during the commission of a robbery.[3] Sentenced to death, his appeal to the California Supreme Court was automatic.
The California Supreme Court unanimously affirmed Duff’s conviction and sentence in People v. Duff (Jan. 30, 2014) 58 Cal.4th 527. Among the issues on appeal, Duff argued that his equivocal reference to an attorney after being read his Miranda rights, while admittedly not sufficient to constitute an invocation,[4] triggered a duty on Detective Winfield’s part “to clarify (Duff’s) desires and obtain a clear and unequivocal waiver.” This, Duff urged, Winfield failed to do.
The law is well-settled that an equivocal attempt to invoke one’s right to the assistance of counsel, not made until after the suspect has waived his rights and an interrogation is in progress, may be ignored by an interrogator.[5] The Court found authority supporting Duff’s argument that the rules may be different when the equivocal invocation is voiced at the time of the initial admonishment.[6] But without resolving the issue of whether an officer must seek such a clarification before beginning an interrogation, the Court instead held that this was not the issue here.
That’s because Detective Winfield did in fact seek clarification before beginning the interrogation. She first told Duff that the decision to invoke or waive was “entirely up to (him),” and that he could stop the interrogation anytime he wanted. She also told him that she “want(ed him) to feel confident with that,” asking him if he was. Duff responded that he was. She also told him that if he didn’t feel like answering any particular question he didn’t have to, and that he could stop the questioning at any time (which he later did). Duff then clearly and unequivocally said that he understood all that and that he was willing to talk to the detective. At that point, the detective had an unequivocal waiver of Duff’s rights and was free to begin the interrogation.[7]
Duff also complained that his statements to Detective Woods (the second detective to question him) should have been suppressed. Everyone agreed that Duff had asked Detective Winfield to stop the interrogation. Acknowledging that he himself was responsible for the reinitiation of the interrogation, he argued that Detective Woods had a duty to readvise him of his Miranda rights before questioning him.[8] The Court disagreed.
Whether or not an in-custody suspect must be readvised upon the reinitiation of an interrogation depends upon the circumstances. A court must consider (1) the amount of time that has elapsed since the first waiver, (2) changes in the identity of the interrogating officer and the location of the interrogation, (3) any reminder of the prior advisement, (4) the defendant’s experience with the criminal justice system, and (5) other indicia that the defendant subjectively understood and waived his rights.[9]
In this case, a readvisal was not constitutionally necessary when Detective Woods resumed questioning just minutes later, in the very same location as the initial interrogation, by a detective summoned by Duff himself, when Duff had been in prison four times before and was quite familiar with the criminal justice system.[10] No such readivsal is required under such circumstantcs.
Lastly, the Court rejected Duff’s argument that his statements were involuntary. In this argument, Duff emphasized his low intelligence (with an I.Q. of 87), his past drug use, and pain he was suffering from the scuffle he had with police when he tried to flee the night of his arrest. The issue is whether a suspect’s “will was overborne at the time he confessed.”[11] A court is to consider the totality of the circumstances, including any police coercion applied, the length, location, and continuity of the interrogation, and the defendant’s maturity, education, and physical and mental health.[12]
Reviewing the transcripts and videotape of his interrogation, the Court found that no threats were made, with the entire interview being very low key. Also, it was noted that Duff never did fully confess, claiming instead that he acted in self-defense. His will, therefore, was clearly not “overborne.” His statements were properly admitted into evidence against him.
So Duff got his retribution. Today, he sits on death row no doubt contemplating whether it was all worth it. But never let it be said that anyone is going to disrespect Dewey Joe Duff and get away with it. So Duff got both his all-important satisfaction, and is going to die trying.
[1] Miranda v. Arizona (1966) 384 U.S. 436
[2] Ibid.
[3] Pen. Code §§ 187, 189, & 190.2(a)(3) & (17)
[4] See Davis v. United States (1994) 512 U.S. 452; &
People v. Williams (2010) 49 Cal.4th 405
[5] People v. Gonzalez (2005) 34 Cal.4th 1111
[6] United States v. Rodriguez (9th Cir. 2008) 518 F.3rd 1072;
People v. Box (2000) 23 Cal.4th 1153
[7] People v. Duff, supra, at pp. 552-554
[8] See In re Z.A. (2012) 207 Cal.App.4th 1401, 1417-1419;
People v. Duff, supra, at p. 554;
[9] Id., at p. 555;
See also People v. Williams, supra, at p. 436; &
People v. Mickle (1991) 54 Cal.3d 140, 171
[10] People v. Duff, supra, at p. 555
[11] People v. Haydel (1974) 12 Cal.3rd 190, 198; &
Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1002; &
People v. McWhorter (2009) 47 Cal.4th 318, 346-347
[12] People v. Williams, supra.
