"FROM THE CLASSROOM"
By Ray Hill, Professor Emeritus, Santa Rosa Junior College

“Its ‘402’ time, officer” - “Who Wins, You or Defense counsel”?

Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.

TITLE: Suspect Reinitiates Questioning After a Miranda Assertion

This is the third in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases. So consider the following question:

You have arrested a suspect for spousal rape and aggravated assault by threatening his wife with a knife. Upon being given a Miranda admonition, he demands counsel. You give the suspect your business card, telling him that you will not question him further, but you would still like to hear his side of the story. If he should want to speak in the future, he should feel free to call you. The defendant is arraigned and a public defender is appointed to represent him. At PX, he is bound over for trial

Three weeks later, you receive a phone call from the suspect. He says he's had a change of mind and wants "to get things off his chest”. You contact him at jail, confirm that no one has promised or induced him to make the call, give Miranda, the defendant waives, and incriminating statements are obtained.

Later at a “402” motion, the public defender objects to the introduction of these statements on Sixth Amendment (Massiah) grounds because the officer failed to contact her first, nor was she present at the time of the interview.

The statements should be?  ADMISSIBLE  or  INADMISSIBLE?

Admissible.   Another exception allowing questioning after an assertion of Miranda rights is when the suspect (defendant) reinitiates the questioning (Edwards v. Arizona (1981) 451 US 477). Examples:  

* A multiple murder defendant asserted counsel. Later, after a physical lineup he told a detective, "I’d like to talk to you". He was "re-Mirandized" and waived his rights. Defendant began by asking about the status of his car used during the murders. The officer continued questioning and obtained incriminating statements. When the defendant asked to speak with the detective, he reopened questioning on his case (Peo. v. Mattson (1990) 50 Cal 3d 826).

A Sacramento serial murder defendant asserted Miranda (“I’m being set up. I want to see my lawyer”). Three hours later, he asked a detective, “Can I talk to you for a minute?” The detective “repeatedly sought to confirm the defendant understood that he did not have to speak but was nonetheless choosing to do so”. Defendant “confessed in detail”. Resumption of questioning was lawful because: 1) Defendant indicated he wanted to open up a general discussion about the case; 2) He was not pressured to do so; and 3) Defendant implicitly waived his Miranda rights by discussing the case after the detective’s clarifications (Peo. v. Hensley (2014) 59 Cal 4th 788).

A murder/rape defendant reported finding the victim's body. He had bloodstains on his clothes. Defendant initially waived Miranda, but after brief questioning asked for counsel. Officers stopped questioning and drove the defendant to the hospital for a forensic evidence exam. An hour later the defendant asked, "What would somebody get for something like that - 30 years?". "I just want to tell the truth". Questioning resumed and the suspect confessed ("I want this on the record, “I'm guilty, I killed her”). There was no lack of Miranda understanding on the defendant’s part when he reinitiated the conversation with the detective (Peo. v. Clark (1993) 5 Cal 4th 950).

A murder defendant was being flown from Japan to Placer County. He had previously invoked his Miranda right to counsel. During the flight, defendant and a detective conversed about the countryside, hometown, family, hobbies, Asian food, politics, and California. Defendant did most of the talking and the conversation was described as “pleasant”. Defendant asked the detective, "If the two victims were buried together"? The detective replied they had been cremated and their ashes scattered in the High Sierras. Defendant began crying and stated, “Nothing would have happened if the man I killed had not become angry”. The detective did not respond to this statement, but said “Curt, I would like to continue our conversation at a later time”. During a stopover in Honolulu, the defendant was "re-Mirandized", waived, and gave incriminating statements. Defendant reinitiated conversation about his case. The in-flight conversations were not designed to "soften him up" to gain a statement. “On the airplane the police asked no questions reasonably likely to produce an incriminating response and only responded to Mickey’s desire for small talk” (Peo. v. Mickey (1991) 54 Cal 3d 612).

In a death penalty case, the defendant was arrested for rape, sodomy, and murder after beating, strangling, and stabbing the victim. The victim’s nipples were bitten off during the crime. Upon Miranda advisement the defendant stated, "No, I want a lawyer”. The next day he called officers and said, “Detective, can I talk to you?” “I don’t know what’s going on”. He was readvised of Miranda, waived, and confessed to the crime. Defendant’s request reinitiated the opportunity for questioning (Peo. v. Bradford (1997) 14 Cal 4th 1005).

Bottom line - If a defendant initiates contact with police after a counsel assertion or after defense counsel has been appointed, police need not be contact counsel for permission to speak. A renewed Miranda admonition clears any Sixth Amendment issue because the defendant is advised of the right to have counsel present and waives that right (Peo. v. Stephens (1990) 218 Cal App 3d 578); Peo. v. Sultana (1988) 204 Cal. App. 3d 512). Defense counsel finds out about the content of the interview on discovery!

So, when a Miranda assertion takes place (silence or counsel), consider a “business card transfer”. Advise the suspect you are respecting his/her assertion and will not continue questioning. Inform the suspect (words to this effect), “I’m still willing to listen to your side of the story". “If you should change your mind, you can call me”. This interaction "sets the stage" for voluntary re-contact at a future date and does not constitute the “functional equivalent” of interrogation.

I realize that the chances a suspect (now defendant) will reinitiate aren’t great. But it does happen, as illustrated by the cases in this article, and also look at Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Pages 184-191. I can recall several felony cases in my career, including a Murder 2nd case, where the defendant reinitiated and I obtained statement that I didn’t have before. A “business card transfer” should not remain unplayed in your quest for to find evidence in your case!

Case law presumes a strong burden of proof on behalf of the District Attorney to show that any subsequent reinitiation of questioning was a result of the defendant’s voluntary decision and did not come as a result of improper police action, misrepresentation, suggestion, or request (Arizona v. Roberson (1988) 486 US 675).

Example:

* After an argument over a television show, an 18-year-old defendant was arrested for strangling his 69-year-old housemate to death with an electrical cord. Defendant declined to waive his Miranda rights. A detective continued to question him. During questioning the defendant unambiguously asked for counsel nine times. The detective told the defendant that he “had to talk to him and could talk to no one else”. No initial statement was obtained. The following day the defendant re-contacted the detective and confessed to the crime. The day after, he gave a second incriminating statement. Ignoring the defendant’s initial Miranda invocation and his repeated requests for counsel created a coercive manner of questioning that rendered all “defendant-initiated” follow-up statements involuntary and inadmissible (Peo. v. Neal (2003) 31 Cal. 4th 63)., Cal., 7/03).

Be sure to document all circumstances present in the reinitiation event to provide proof that there was no law enforcement threat, inducement, promise, etc. which would have caused the suspect to reinitiate and that he/she knowingly and voluntarily waived one’s Miranda rights. Record the exact nature of the defendant’s “reach out” (means, circumstances, wording, etc.).

Although some cases have approved an implied waiver when reinitiating questioning, strongly consider a full Miranda admonition with an express waiver of rights (and Bob Phillips concurs). After all, the suspect contacted you so asking the second waiver question is unlikely to scare him/her off.

Stay Safe,

RH