Mohammed Amir Yusuf v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-176-CR

MOHAMMED AMIR YUSUF,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-776-C

O P I N I O N

A jury convicted Mohammed Amir Yusuf of capital murder and assessed punishment at life in prison. // See Tex. Penal Code Ann. 19.03 (Vernon 1995). He appeals on four points. His first three points assert that the court erred in admitting his written statement. His final point asserts that the court erred in failing to instruct the jury on the lesser-included offense of murder. We will affirm the judgment.

In the early morning hours of August 14, 1993, Greg McCullough and Roger Wayne Gandy were drinking beer at Flat Rock Park. As they were leaving the park, two men in a car with its hood up asked for assistance. McCullough testified that he helped get the car started. As he returned his jumper cables to his car, one of the men later identified as Jason Crum pulled a sawed-off double-barrelled shotgun and pointed it at McCullough. Crum demanded McCullough's wallet and jewelry. McCullough threw his watch and wallet on the ground. Meanwhile, the other man later identified as Yusuf hit Gandy in the head with his fists, knocking him to the ground. As Crum bent to retrieve the wallet and watch, McCullough turned and began to run towards Lake Waco. As he was running, he heard a gunshot blast. He ran down an embankment, jumped into the lake, and swam towards a small island. McCullough remained in the lake for three hours until he was picked up by fishermen and taken to shore. He then contacted the police.

In three points, Yusuf asserts that the court erred in failing to suppress his written confession. First, he contends that police officers continued to question him after he had invoked his right to consult with a lawyer. Second, he contends that the officers continued to question him after he had invoked his right to remain silent. Finally, he asserts that the State did not establish that he knowingly and voluntarily waived his right to remain silent.

In a hearing on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). If the court's resolution of a controverted issue is supported by the record, a reviewing court should not disturb that decision. Muniz v. State, 851 S.W.2d 238, 252 (Tex. Crim. App.), cert. denied, U.S. , 114 S. Ct. 116, 126 L. Ed. 2d 82 (1993).

Prior to trial, the court heard evidence on Yusuf's motion to suppress. Kristina Woodruff, a detective with the special crimes unit of the Waco Police Department, testified that she arrested Yusuf at his home at approximately 7:45 a.m. on August 18. She transported him to the county jail where he was booked. Woodruff read the "Texas Statutory Warnings" to Yusuf at 9:52 a.m. Yusuf initialled the statutory warning card, indicating that the warnings had been read to him.

The card states:

Warning to be Given Before Taking

Any Oral or Written Confession

1. You have the right to remain silent and not to make any statement at all and that any statement you make may be used against you and probably will be used against you at your trial;

2. Any statement you make may be used as evidence against you in court;

3. You have the right to have a lawyer present to advise you prior to and during any questioning;

4. If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning;

5. You have the right to terminate this interview at any time.

Woodruff and Detective Mike Alston then escorted Yusuf to a room in the district attorney's office. // The officers asked Yusuf if he wanted to talk. Yusuf indicated that he did want to talk, but that he needed time to think. He asked the officers whether they thought he needed a lawyer. Woodruff testified that she told Yusuf that they could not think for him and that "if he thought he needed a lawyer, he needed to make that decision." She told Yusuf that they could return him to the jail to make arrangements but, according to Woodruff, he did not want to return to the jail. Rather, "he said, `no,' he wanted to stay, just give him a second, he wanted to think."

Alston left the room to get Yusuf a drink of water while Woodruff remained with him. Approximately four minutes later, Yusuf told Woodruff that he was ready to talk with her. At 10:30 a.m., Yusuf signed and initialled // another Miranda warning document which stated:

WACO POLICE DEPARTMENT

MIRANDA WARNING

Before you are asked any questions, you must understand the following rights:

1. You have the right to remain silent and you do not have to talk to me if you do not wish to do so. You do not have to answer any of my questions. Do you understand that right?

yes AY no

2. Should you talk to me, anything which you might say may be introduced into evidence in court against you. Do you understand?

yes AY no

3. If you want a lawyer to be present during questioning, at this time or anytime hereafter, you are entitled to have the lawyer present. Do you understand that right?

yes AY no

4. If you cannot afford to pay for a lawyer, one will be provided for you at no cost if you want one. Do you understand that right?

yes AY no

This statement is signed of my own free will without any threats or promises having been made to me.

Woodruff and Alston also signed the warning document.

Yusuf then gave a statement, which Woodruff wrote down. He signed the statement at 11:25 a.m. Woodruff testified that, prior to signing his statement, she read the warnings contained in the statement form to Yusuf, who initialled each one. The statement form warnings were:

1. I have the right to remain silent and not make any statement at all and that any statement I make may be used in evidence against me at my trial.

2. I have the right to an attorney, and that if I am unable to employ an attorney one will be provided for me;

3. I have the right to have an attorney or lawyer present to advise me prior to and during any questioning or interrogation by peace officers or attorneys for the State; and

4. I have a right to terminate the questioning, interview or interrogation at any time.

I understand my rights as set out in this warning and knowing what they are I freely and voluntarily, without being forced or compelled by promises, threats or persuasion, waive these rights and make the following statement in writing . . . .

Yusuf testified at the suppression hearing that he had asked for a lawyer; that the officers, however, told him that, if he did not "say such and such," he would be facing the death penalty; and that he gave a statement because the officers "scared" him. On cross-examination, Yusuf admitted that he had been given Miranda warnings three times before he signed his statement. He testified that he signed the statement "freely and voluntarily" and that he was not forced to sign it.

Alston testified that Yusuf asked the officers whether they thought he needed an attorney. Woodruff told him that they could not make that decision for him. Yusuf asked the officers for some time to think. Alston testified that, to the best of his knowledge, Yusuf's statement had been freely and voluntarily given. Alston denied that they had threatened him with the death penalty if he did not "say such and such."

invoking right to consult with a lawyer

In his first point, Yusuf asserts that the court erred in failing to suppress his written statement because the officers continued to question him after he had invoked his right to consult with a lawyer. He admits that he did not make a clear and direct assertion of his right to counsel, but suggests that his statements constituted an ambiguous request for counsel. Thus, he asserts that the officers were not required to stop questioning him entirely, but could only question him to clarify his request and determine if he desired assistance of counsel.

Once a suspect clearly asserts his right to have counsel present during custodial interrogation, law enforcement officers must immediately cease questioning. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Yusuf concedes that his request for counsel was ambiguous. The Supreme Court has recently declined to extend Edwards to require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. Davis v. United States, U.S. , 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994). Although recognizing that it would be good police practice for the interviewing officer to clarify whether a suspect wants an attorney after the suspect has made an ambiguous or equivocal request the Supreme Court declined to adopt a rule requiring the officer to ask clarifying questions. Id., 114 S. Ct. at 2356. "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id.

The officers were not obligated to cease questioning Yusuf, nor were they limited to questions clarifying whether he wanted an attorney. Yusuf's first point is overruled.

invoking right to remain silent

Yusuf's second point asserts that the court erred in failing to suppress his written statement because the officers continued to question him after he had invoked his right to remain silent. Once warned, if the suspect indicates in any manner, at any time prior to or during the questioning, that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 1627-28, 16 L. Ed. 2d 694 (1966). The admissibility of statements taken after an individual invokes his right to remain silent depends on whether the right was "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313 (1975). Yusuf argues that, because an officer remained in the room while he decided what to do, the officers did not "scrupulously honor" his right to remain silent.

Yusuf attempts to distinguish Phillips v. State, 701 S.W.2d 875 (Tex. Crim. App. 1985), cert. denied, 477 U.S. 909, 106 S. Ct. 3285, 91 L. Ed. 2d 574 (1986), and Murphy v. State, 766 S.W.2d 246 (Tex. Crim. App. 1989), both of which found that the officers had scrupulously honored the suspect's right to remain silent. In Phillips, the suspect told officers that he "wanted a little time." The Court of Criminal Appeals held that this request was an invocation of the suspect's right to remain silent. Phillips, 701 S.W.2d at 891. The officers immediately took the suspect away from the interrogation room and gave him lunch. Two hours later the officers again read Phillips his rights. He then made a statement. The Court found that the officers had scrupulously honored his right to remain silent. Id. In Murphy, when the suspect indicated that he did not want to talk with officers, interrogation ceased and he was not reinterrogated for fifteen days. Murphy, 766 S.W.2d at 250.

Here, the officers offered to return Yusuf to the county jail. Yusuf stated that he did not want to return to the jail, that he wanted to stay, "just give him a second, he wanted to think." He asked for a drink of water, which Alston got for him while Woodruff remained in the room. After four or five minutes, Yusuf began to talk. During the interim, Woodruff and Alston were silent. Woodruff testified that Yusuf made repeated comments that "he wanted to tell us what happened, that it was bothering him, and just for us to be patient." Prior to giving his written statement, Yusuf was again given Miranda warnings.

Under the facts of this case, the officers scrupulously honored Yusuf's right to remain silent. We overrule point two.

knowing and voluntary waiver

In his third point, Yusuf asserts that the court erred in denying his motion to suppress his written statement because the State did not establish that he knowingly and voluntarily waived his right to remain silent. The burden is on the prosecution to prove that a defendant waived his privilege against self-incrimination. Miranda, 384 U.S. at 475, 86 S. Ct. at 1628. Waiver is determined from the totality of the circumstances. Watson v. State, 762 S.W.2d 591, 602 (Tex. Crim. App. 1988). Yusuf was given his Miranda rights twice before making his written statement and again before signing the statement. The officers offered to return him to jail to give him time to think, but he declined, asking the officers to "give him a second." Yusuf testified at the suppression hearing that he gave a statement because the officers had "scared" him with talk of the death penalty. However, he further testified that he signed his statement freely and voluntarily and that he had been given Miranda warnings three times before he actually signed the statement.

Under the totality of the circumstances, the court was justified in finding that the statement was knowingly and voluntarily given. See id. We overrule point three and hold that the court did not err in admitting the written statement.

lesser-included offense

In his final point, Yusuf argues that the court erred in failing to instruct the jury on the lesser-included offense of murder. He contends that his confession raised the issue of whether he intentionally shot the victim.

In determining whether a jury must be instructed concerning a lesser-included offense, a two-step analysis must be applied. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, U.S. , 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. at 673. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is only guilty of the lesser offense. Id. (clarifying the test of Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981)). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted. Id. at 24.

Yusuf was charged with capital murder by intentionally causing the death of Gandy in the course of committing robbery. See Tex. Penal Code Ann. 19.03(a)(2). He argues that, if he acted knowingly or recklessly rather than intentionally he is guilty of the lesser-included offense of murder. See id. 19.02(a) (Vernon 1989). // Two of the three definitions of murder require an intentional act. Id. 19.02(a)(1), (2). Thus, Yusuf apparently argues that he was entitled to an instruction on murder under section 19.02(a)(3) a non-capital offense i.e., that in the course of committing a felony he committed an act clearly dangerous to human life that causes the death of an individual. See id. 19.02(a)(3).

The State presented evidence at trial that the shotgun used in the shooting had human blood on and in the barrel. The blood was a type consistent with that of the victim's. The autopsy report revealed that the victim had suffered two shotgun wounds one to the back and one to the back of the head. The wound to the back of the head was a contact wound, resulting from the muzzle of the gun being held firmly to the victim's head. A firearms examiner testified that the gun's safety had to be released for the gun to fire and that nothing was mechanically wrong with the shotgun that would have allowed for an accidental firing.

Yusuf's statement, in pertinent part, reads:

[M]y friend Paco (Jason Crum) pulled the 20-gauge shotgun and pointed it at the one that got away and told him to give Paco his wallet. That man took his wallet out and threw it on the ground. Paco handed me the shotgun and Paco started getting things out of the car. I was scared. I did not mean for this to happen. By this time the driver of the other car had taken off running. I asked the one that was still there to call the one that got away and tell him to come back. That one that was still there told me he did not even know his name. That white male just yelled, "Hey, come back here, hey! come back here," a couple of times. Then the one that was still there began trying to leave. I was following him, but I can't remember if we were walking or running. I had had a lot of beer, I had been drinking all day and everything was very confusing. The next thing I knew, I pulled the trigger. When I did the shotgun fired and the man went down and was laying on his back. I went over to him and without thinking again I pulled the trigger again. This time I was about four or five feet away. I stood there looking at that man. I could not believe what happened. I felt very bad.

Yusuf argues that his statement raises the issue of whether the murder was committed intentionally. He contends that his statement also raises the possibility that the act was done knowingly or recklessly. The State concedes that the first prong of Rousseau that the lesser-included offense must be included within the proof necessary to establish the offense charged has been met. See Rousseau, 855 S.W.2d at 673. The question is whether any evidence exists in the record that would permit a rational jury to find that Yusuf is guilty only of murder. See Bignall, 887 S.W.2d at 23.

The difference between felony murder and capital murder is the culpable mental state of the offender. Rousseau, 855 S.W.2d at 673. Capital murder requires the existence of an "intentional cause of death"; felony murder provides that "the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying . . . felony." Id. (citing Rodriquez v. State, 548 S.W.2d 26, 29 (Tex. Crim. App. 1977)). Thus, Yusuf was entitled to a charge on the lesser-included offense of felony murder if there was some evidence that would permit a jury rationally to find that he had the intent to rob the victim but not to cause his death. Id.

"The possibility that initially or at some point during the commission of the robbery the offender did not have an intent to cause death does not amount to evidence that the offender did not intend to cause the victim's death when the murder was committed. There is no requirement in the case of capital murder committed in the course of a robbery, that the intent to cause death be premeditated or formulated prior to the commission of the robbery. The offender must only have formulated an intent to cause death when he actually commits the murder." Id. at 674.

A statement made by a defendant "cannot be plucked out of the record and examined in a vacuum" in a lesser-included offense analysis. Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) (citing Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). Yusuf's statements, "the next thing I knew I pulled the trigger" and "without thinking again I pulled the trigger again," do not amount to evidence that he had not formulated the intent to cause the victim's death. The former statement, "I pulled the trigger," does not raise a lesser mental culpability. The latter, "without thinking again I pulled the trigger again," is in the context of a contact wound to the head. Viewed in the context of the entire record, Yusuf's statement does not amount to some evidence that would permit a jury rationally to find that he did not intend to cause the victim's death. See Rousseau, 855 S.W.2d at 673. We overrule Yusuf's fourth point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 22, 1995

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