State of Delaware v. Pilliam.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE, v. MARKEVUS PULLIAM Defendant ) ) ) ) ) ) ) I.D. No. 1112006547A Submitted: October 15, 2012 Decided: December 13, 2012 Upon Defendant s Final Amended Motion to Suppress Statements. GRANTED IN PART AND DENIED IN PART. MEMORANDUM OPINION Steven P. Wood, Esquire and Stephen G. McDonald, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorneys for State of Delaware Patrick J. Collins, Esquire, Collins & Roop, Wilmington, Delaware, Attorney for Defendant COOCH, R. J. I. INTRODUCTION Defendant seeks to suppress two custodial statements offered two days apart during separate interrogations regarding a murder and robbery for which he is presently charged. Defendant claims his federal and state constitutional rights were violated because his interrogator failed to clarify Defendant s intent when Defendant ambiguously invoked his right to remain silent during his first statement. Defendant contends he ambiguously invoked his right to silence when he requested his mother. The State argues that under the particular circumstances of this case, Defendant s request is distinguishable from relevant Delaware Supreme Court precedent and did not constitute an ambiguous invocation. Defendant argues his second statement should be suppressed because the first statement s impropriety tainted it. The State contends that both of Defendant s statements were voluntary and not coerced, and therefore, the second statement was not tainted. This Court concludes that Delaware Supreme Court precedent provides that the interrogating police detective was required to clarify Defendant s intent when Defendant requested his mother. Accordingly, the first statement requires partial suppression, beginning when Defendant initially requested his mother. 1 To determine whether the second statement was tainted by the first statement s unclarified invocation, which this Court finds to have been ambiguous, this Court must analyze an issue of apparent first impression in Delaware: Delaware courts have apparently never considered the effect that an unclarified ambiguous invocation has upon a subsequent statement s admissibility. This Court concludes that the unclarified ambiguous invocation of the right to remain silent violated only Miranda s prophylactic requirements and did not violate Defendant s constitutional rights. Therefore, despite the unclarified ambiguous invocation in the first statement, the second statement is admissible because both statements were nevertheless voluntary and not coerced. For those reasons, Defendant s Final Amended Motion to Suppress Statements is GRANTED IN PART and DENIED IN PART as to the first statement and DENIED as to the second statement. II. FACTUAL HISTORY On June 21, 2011, Phillip Costango was shot and killed in Northeast Wilmington during a drug-related robbery. Police identified Defendant Markevus Pulliam as a suspect through cell phone records linking Defendant to Costango at the time of his death. 2 On December 7, 2011, Defendant was transported to the Wilmington Police station for an interview with Detective Gary Tabor. Detective Tabor administered Miranda warnings, advising Defendant of his constitutional rights. 1 Defendant responded that he understood and asserted his willingness to speak with Tabor. 2 Shortly after questioning began, Tabor informed Defendant that he was a suspect in Costango s murder. 3 After a two hour break, the following discourse occurred: Detective: Um. You know? I ve done nothing. I was nothing but respectful to them. Um. You know? I m not. I m not going to f[---] you over. You know what I mean? I m not that kind of person. I wouldn t do it. Ah. And I know it s a hard step to that you re that you re going to take. Um. Believe me, I ve sat in this room many times, with many other people who have been in the same position that you re in and I know that it s a very hard task to take that step. Okay? So don t think that I don t. Don t think that I m ignoring that fact. Okay? I m not. But um, it s a step that you have to take. You understand? For your for yourself you have to do it. Okay? For Phil you have to do it. Um. All the other issues that you re thinking about are all things we can work out. Okay? So I mean I ve moved people to South Carolina and, you know? For their protection so, um, at their request. So that s something, you know, depending on what you tell me, you know? We can maybe work that out. Okay? But you have to be willing to tell me everything truthfully. Okay? So tell me what happened. Defendant: I didn t . . . one more thing. I want like, can you like bring my mom here? 1 Def s Interview Tr. 1:05:11.2 (December 7, 2011). 2 Id. at 1:05:27.1 - 1:06:05.6. 3 Id. at 1:15:48.5. 3 Detective: You want your mom here? Okay. You want to talk to her? How old are you now? Defendant: Nineteen. Detective: Nineteen, okay. Defendant: I mean, I just want to talk to-, I just want to feel safe in here talking to you . . . with somebody that I know. Detective: Okay. Defendant: All right. Detective: I ll tell you what, let s trade. Okay? Let s trade a little bit first so that I m not wasting my time. That I know you re being truthful with me. Give me some details about what happened to Phil, that I can look at the evidence I have and say, Okay, he s telling me the truth. He s not jerking me around. Let me go call his mom in and make arrangements. All right? Defendant: Yeah. I didn t do it. Detective: I don t think you did it. Who was with? Who was with you that night? Defendant: I didn t. I didn t never leave the house, but I did let somebody use my phone. Detective: Okay. Who used your phone? 4 Questioning continued and Defendant provided a somewhat exculpatory story in which Defendant implicated his codefendant, Pierre Bailey, but denied knowing about the robbery in advance or being present at the scene. 5 Detective Tabor then 4 Id. at 4:02:23.2 - 4:03:26.0. 5 Id. at 4:03:15.5 - 4:04:07.4. 4 left the interview room and called Defendant s mother. 6 Tabor returned and told Defendant that his mother was on her way. 7 After additional questioning, Defendant admitted being present, but denied any role in the crime. 8 Tabor then indicated that Defendant s mother would be arriving soon. Detective: Okay. All right. Give me just a second. Okay? Your mom should be here any minute. I called. Um. I talked to her. She said fifteen minutes, so she should be in just a couple more. Defendant: Which one you called? Detective: Huh? Defendant: Who you called? Detective: Jacqueline. Defendant: Oh. Detective: Because she s closest. I figured you d want her here faster. You know? Is that okay? Defendant: Yeah. 9 Approximately twenty-five minutes later, Defendant asked if his mother had arrived. 10 Defendant: 6 Id. at 4:12:44.5. 7 Id. at 4:25:10.1. 8 Where s my mom? Id. at 4:36:40.0. 9 Id. at 4:45:33.2 - 4:45:51.8. 10 Id. at 5:01:09.9. 5 Detective: I think she just got here. Hang on one sec. [Detective exits and reenters the room] All right, Markevus. We got your mom here, okay? She s going to come in just a couple of minutes. I want you to look at these pictures real quick [Places photographs on table for interviewee to look at] They re hard to see, if you need bigger ones, just tell me, okay? But obviously we re trying to figure out who Pierre is, all right? I need you to point him out to me . . . if you see him. Defendant: That kind of looks like him, but I m not sure.11 After fifteen more minutes, Defendant again stated he wanted to know if his mother was present. 12 Detective Tabor responded with more questions about the codefendant Bailey. Defendant: Did you call my mom? Detective: She s here. Defendant: I want to speak with her. Detective: As soon as you tell me who Pierre is. Defendant: Number two. Detective: Number two? Circle that for me. 13 Defendant s mother entered the room seventeen minutes later. 14 Detective: Miss Pulliam? Mother: Yeah? You want to see Alexis? 11 Id. at 5:01:00:1 - 5:35:29.4. 12 Id. at 5:50:26.7. 13 Id. at 5:50:26.7 - 5:50:38.1. 14 Id. at 6:07:58.8. 6 Detective: I m not. I m actually done. I m not going to bring Alexis in here right now. Okay? Mother: Okay. Detective: He wanted to talk to - to you and I honored that. Okay? Which I don t ever do, so you know, you re fortunate I let you do that. Okay? You re an adult now. All right? Defendant: So where I m going? 15 The interview resumed thirty minutes later. 16 Defendant continually denied having a gun during the crime. The interview concluded about ninety minutes later. 17 Defendant never explicitly invoked his right to silence, refused to answer questions, or indicated he did not wish to be questioned. Two days later, on December 9, 2011, Detective Tabor conducted a second interrogation with Defendant, this time at the Howard R. Young Correctional Institution. Miranda warnings were again administered to begin the interview, advising Defendant of his rights to silence and counsel. 18 Detective: Okay. Alright, um, I m just going to read you your rights again, just like the other day. Okay? Basically we ll just talk about the same thing, but let s read you your rights anyway, okay? You have the right to remain silent, anything you say can be used against you in a court of law. You have the right to an attorney. If you can t afford an attorney one will be appointed to represent you. You have the right to stop answering questions at any time. You have 15 Id. at 6:18:15.5 - 6:18:36.8. 16 Id. at 0:01:20.4. 17 Id. at 3:02:35.5. 18 Def s Interview Tr. 0:02:54.5 (December 9, 2011). 7 the right to have a lawyer present during your questioning. Do you understand that? Okay. Having those rights in mind, is it alright if we talk about the things you haven t told me? And you know, how they re different from the things that you ve already told me? Yes? Defendant: Mm-hmm. Detective: You got to say yes or no. Defendant: Yeah. 19 Questioning continued and the interrogation addressed some of the same topics from the prior statement in more detail. Detective: Defendant: Me. Detective: Okay. And who was in the passenger seat of that car? Defendant: Nobody. Detective: Nobody? Was Yeyo there? Defendant: Hm-mm. Detective: You sure? Okay. Who was in the back seat of the car? Defendant: P. Detective: And P is? Defendant: Pierre. Detective: 19 Okay. Who drove that car? Pierre. Okay. Pierre s the one you picked out of that lineup yesterday right? Okay, so why did you tell me that she drove the car Were you afraid to tell me that you drove the car? Id. at 0:02:54.5 - 0:03:28.8. 8 Defendant: No, cause I know that she knew who shot the bullet and ¦ I didn t want to get charged with murder or something and be in jail. Detective: So you knew that she knew, how did she know that Pierre did the shooting? Defendant: Because Pierre came back to my house and told us. Detective: And what happened when Pierre came back to the house? Defendant: I told you, he . . . 20 ... Detective: Okay. Alright, we ll work on that. So P asked you for your phone, you knew he was ordering up so you guys could go rob him. Right? Obviously you knew that Pierre had a gun, we talked about that yesterday. Right? 21 ... Defendant: So Phil tried to take off and then P just hopped out and tried to run after him, and then that s when I took off. Detective: Okay. And you heard 5 to 7 shots you said yesterday, I think? Defendant: Yeah, like 5, 6, yeah. 22 Defendant admitted Bailey gave him fifty dollars after the robbery.23 Defendant never invoked his rights to silence or counsel nor did he ask to see his mother. 20 Id. at 0:06:01.8 - 0:06:51.8. 21 Id. at 0:10:50.5. 22 Id. at 0:16:04.2 - 0:16:14.0. 23 Id. at 0:16:38.5. 9 Defendant was subsequently indicted on charges of Murder First Degree (being prosecuted as a non-capital case), two counts of Possession of a Firearm During the Commission of a Felony, Robbery First Degree, Conspiracy Second Degree, and Possession of a Firearm or Ammunition by a Person Prohibited. III. THE PARTIES CONTENTIONS 24 A. Defendant s Contentions Defendant seeks to suppress both statements, contending they violated his Fifth Amendment right to remain silent and to counsel under Miranda v. Arizona. 25 Defendant contends that his December 7 statement requires suppression because he requested his mother, thereby equivocally invoking his right to remain silent, pursuant to Draper v. State. 26 Defendant asserts that under Delaware law, this ambiguity required that Detective Tabor have sought to clarify Defendant s request. Defendant asserts that because the detective never clarified the equivocal invocation, Defendant s entire December 7 statement requires suppression. Furthermore, Defendant contends the December 9 statement requires suppression because it was tainted by the detective s failure to clarify the December 7 statement s ambiguous invocation. Defendant argues the second interrogation was 24 The parties stipulated that Defendant s Motion to Suppress could be resolved on a paper/video record without an evidentiary hearing. Letter to Counsel from Ct. (Sept., 20, 2012). 25 384 U.S. 436 (1966). 26 49 A.3d 807 (Del. 2002). 10 tainted because (1) there was a minimal break in interrogation, (2) Defendant remained in custody, and (3) the interrogations involved the same information. 27 B. The State s Contentions The State contends that both statements should be admissible because Defendant knowingly and voluntarily offered them. Regarding the December 7 statement, the State asserts that the facts are distinguishable from Delaware jurisprudence, including especially Draper s holding that, under the facts of Draper, a request for one s mother constitutes an equivocal invocation. The State argues that Defendant s request did not constitute an equivocal invocation because it was not immediately after Miranda warnings and it was not repeated. The State further asserts that [a] request to see a parent is not inexorably an invocation of one s right to silence, and a suspect must do or say something more before one can fairly argue that such is, at least, an ambiguous invocation of the right. 28 The State contends that all these distinguishing factors indicate Defendant s statement was entirely voluntary. The State also argues that Defendant did not make an ambiguous Defendant appears to contend that his cognitive limitations left him unusually susceptible to the detective s coercion. The State has not addressed this additional matter. However, before briefing began, the parties stipulated that the Motion could be resolved on a the record without an evidentiary hearing. On the limited paper record, no definitive determination can be made about Defendant s alleged cognitive difficulties. Although the Court does not reach that issue, the Court notes that it does not appear that the detective exploited Defendant s alleged cognitive limitations sufficient to establish coercion. 27 28 State s Br. at p. 5. 11 invocation of his right to silence because Defendant never stopped answering questions and Defendant resumed the interview after speaking with his mother. The State asserts Defendant was not coerced during either statement, so that both statements were voluntary. The State asserts that even if the detective erred by not clarifying Defendant s request for his mother in the first interview, both statements were incontrovertibly voluntary and not coerced, and therefore admissible. IV. DISCUSSION A. Defendant s December 7 Statement Requires Suppression Beginning with Defendant s First Request for his Mother. The police may not conduct a custodial interrogation without the defendant first knowingly and voluntarily waiving the right to remain silent and the right to counsel. 29 If, after knowingly and voluntarily waiving Miranda rights, a suspect unambiguously states he no longer wishes to speak with the police, questioning must cease. 30 The right to remain silent is guaranteed under the Fifth Amendment of the United States Constitution and Article I, § 7 of the Delaware Constitution. The right to silence may be invoked, in any manner, at any time before or during a custodial interrogation.31 A court will suppress statements gathered during an 29 Miranda, 384 U.S. at 468-71. 30 Id. at 473-74; DeJesus v. State, 655 A.2d 1180, 1194 (Del. 1995). 31 Miranda, 384 U.S. at 472. 12 interrogation that is continued despite a defendant invoking the right to silence. 32 The right to remain silent is subject to the same protection as the right to counsel. 33 If a defendant s invocation of the right to remain silent is ambiguous, the Delaware Constitution has been held to provide additional protection. While federal law allows the police to continue the interrogations, 34 Crawford v. State 35 requires as a matter of state constitutional law that the police clarify a suspect s ambiguous request for counsel (not an issue in this case) before resuming an interrogation. 36 Whether a statement is an ambiguous invocation of the right to silence is determined on a case-by-case basis, analyzing the totality of the circumstances. 37 An interviewer may clarify a defendant s intention through various means, including by repeating Miranda warnings; however, the attempts must not be coercive. 38 The clarification approach requires the interrogating officer to limit his questions to 32 See Dodson v. State, 513 A.2d 761, 763 (Del. 1986) ( The right to remain silent is a constitutional right . . . [c]onsequently, when a defendant invokes his right to silence, the police may not initiate continued interrogation on the crimes at issue. ) (citing Edwards v. Arizona, 451 U.S. 477, 484 (1981)). 33 Id. at 763. 34 Davis v. United States, 512 U.S. 452, 461-62 (1994) (holding that the need for effective law enforcement requires that when a suspect ambiguously requests an attorney, questioning may continue unless a suspect unambiguously requests counsel.) 35 580 A.2d 571, 577 (1990). 36 Del. Const. art. I, § 7. 37 Garvey v. State, 873 2d. 291, 297 (Del. 2005). 38 Crawford, 580 A.2d at 577. 13 those designed to elicit definitive indications of intent when a suspect makes an ambiguous request for counsel. 39 Pertinent to this case, in Draper v. State, the Delaware Supreme Court has held that a defendant s right to remain silent was ambiguously invoked when a defendant articulated that he did not wish to be interrogated until speaking with his mother. 40 In that case, the thirty-one year old defendant stated to the officer early in the interview, I want to see my mom. 41 When the officer pressed further, the defendant explained a willingness to speak with the officer, but only [a]fter I talk to my mother. 42 The Draper Court determined that the officer violated the defendant s Delaware constitutional rights when the officer did not immediately cease the substantive interview and clarify whether the defendant intended to invoke his Miranda rights. 43 The Court suppressed the entire interview because the defendant requested his mother immediately after questioning began. 44 Thus, to resolve this motion, this Court must first determine whether Defendant s request to 39 Id. at 575. 40 49 A.3d 807 (Del. 2002). 41 Id. at 808. The recorded video of the interview in Draper did not capture the first few minutes of interrogation. However, evidence demonstrated that Draper insisted he speak with his mother right off the bat. Id. 42 Id. at 809. 43 Id. 44 Id. 14 see his mother constituted an invocation, or at least an ambiguous invocation, of Defendant s right to remain silent. Defendant s invocation was at best, ambiguous, and requires a totality of the circumstances analysis. When Defendant requested his mother, he had been interrogated intermittently for three hours about his involvement in a murder. At the time of his interview, Defendant was nineteen years old. Defendant requested that his mother be brought to the interview, and explained that he would feel safer talking to the officer with her present. Defendant s statements requesting his mother s presence are more ambiguous than the defendant s in Draper. Through further questioning, the defendant in Draper explicitly conditioned his willingness to continue the interrogation upon first speaking with his mother. The defendant in Draper expounded on his initial request to speak with his mother by answering follow-up questions about his willingness to continue the interrogation. 45 Conversely, in this case, Defendant did not expound on his request, at least partially because follow-up clarification questions were never asked. Notably, if Defendant s statements regarding his mother are less clear than those of the defendant in Draper, it is at least partially because Detective Tabor never clarified Defendant s request. 45 Garvey, 873 A.2d at 295. 15 The circumstances demonstrate that Defendant s request constituted an ambiguous invocation of his right to silence. The interrogation s length, the crime for which Defendant was a suspect, his age, and Defendant s recorded statements all indicate that Defendant s request required clarification. Defendant s request could not reasonably be interpreted otherwise considering the totality of the circumstances. The detective should have immediately ceased the substantive interview and have sought to clarify Defendant s intent. Instead, by shifting to bargaining, the detective failed to limit his questions to those designed to elicit definitive indications of intent. 46 The State argues that Draper was limited to its facts and did not establish a per se rule that a request for one s mother constituted an ambiguous invocation of the right to remain silent. The State attempts to distinguish Draper because the defendant s request for his mother in Draper immediately followed his Miranda waiver, whereas Defendant s request in this case occurred three hours into the interrogation process. Also, unlike Draper, Defendant did not repeat his request. Rather, Defendant answered the detective s unrelated questions. The State also contends that Draper is inapposite because Defendant never once linked his desire for his mother with an unwillingness to continue the interrogation. The State asserts that [a] request to see a parent is not inexorably an 46 Crawford, 580 A.2d at 575. 16 invocation of one s right to silence, and a suspect must do or say something more before one can fairly argue that such is, at least, an ambiguous invocation of the right. 47 The State s contention is that because Defendant did not steadfastly and repeatedly request his mother, that the detective was not obligated to cease questioning under Draper. However, that contention misreads the broad language in Draper. If that were Draper s proper reading, the exception would inevitably swallow the rule. The State s proposed interpretation would empower officers to bargain in response to ambiguous invocations to remain silent, or ignore them altogether, and hope the defendant did not repeat the request. The State s attempt to distinguish Defendant s statement from the defendant s in Draper is unpersuasive. An invocation of the right to silence need not immediately follow a Miranda waiver; an invocation may be made in any manner and at any time during a custodial interview. 48 Whether Defendant requested his mother immediately following Miranda warnings or at any time until the last interview question would not impact its effectiveness. Defendant was not required to repeat his request or explicitly link his desire for his mother with an unwillingness to continue the interview. To hold a defendant to such a standard would undermine 47 State s Br. at p. 5. 48 Miranda, 384 U.S. at 472. 17 Crawford by essentially eliminating the possibility of ambiguously invoking the right to silence by requesting one s mother. 49 This burden shifting directly contradicts the Delaware Supreme Court s broad holding in Draper. The State s argument that a defendant must do or say something more than merely request a parent to constitute an ambiguous invocation, albeit technically true, is misleading. The initial burden under Crawford and Draper remains on the interviewer to clarify the suspect s intention. When an interviewer properly asks clarifying questions designed to elicit definitive indications of intent, through responses, the defendant must do or say something more to indicate that his request is actually unambiguous. If an interviewer fails to ask clarifying questions after a defendant ambiguously invokes the right to silence, the defendant has no further duty. 50 Therefore Defendant s Final Amended Motion to Suppress Defendant s December 7 Statement is GRANTED IN PART and DENIED IN PART. Defendant s December 7 statement is suppressed beginning with Defendant s initial request for his mother. 51 49 See Crawford, n.34, supra. 50 While police often carry printed cards to ensure precise Miranda warnings, the public is not required to carry similar cards so they can give similarly precise responses. In re H.V., 252 S.W. 3d 319, 326 (Tex. 2008) (citations omitted). It is important to clarify that a defendant cannot invoke the right to remain silent merely by requesting to see or speak with one s mother. That is not the proper conclusion to be drawn from 51 18 B. Defendant s December 9 Statement Was Not Tainted By the December 7 Statement. To determine whether the December 9 statement was tainted by the detective s failure to clarify Defendant s intention, this Court must analyze an issue of apparent first impression in Delaware. Delaware Courts have analyzed whether the taint of a prior Miranda violation spoils a subsequent statement. However, whether a subsequent statement can be tainted by the first statement s unclarified ambiguous invocation of the right to remain silent appears to be a novel issue. This Court concludes that any taint of an unclarified ambiguous invocation does not automatically render inadmissible a subsequent statement that was voluntary, not coerced, and no longer subject to the ambiguous invocation. Therefore, for the reasons that follow, Defendant s Motion to Suppress Defendant s December 9 Statement is DENIED. 1. The United States Constitution s Protection When a defendant invokes the Fifth Amendment right to remain silent, the invocation must be scrupulously honored. 52 When an invocation is not this case or from Draper. If that were the case, the slippery slope of possible requests would be potentially never-ending. There is no Delaware constitutional right to see or speak with one s mother (or anyone other than counsel) during an interrogation. The defendant s request for his mother did not invoke the right to remain silent. Rather, it was that Defendant s request for the mother was never clarified to determine whether Defendant was invoking the right to remain silent that requires the partial suppression. 52 Miranda, 384 U.S. at 479 (1966); Michigan v. Mosley, 423 U.S. 96, 103, (1975). 19 scrupulously honored, the Fifth Amendment is substantively violated and all statements after the invocation are inadmissible. 53 A different analysis is required, however, where a statement is inadmissible because the statement violated Miranda s prophylactic requirements. 54 Prophylactic Miranda warnings are not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected. 55 In the seminal United States Supreme Court case of Oregon v. Elstad, 56 two officers initially questioned a defendant at home without first administering Miranda warnings. 57 53 The defendant immediately admitted being present at a Id. 54 [A]prophylactic rule is designed to operate as a preventative measure; its purpose is to safeguard against a potential constitutional violation, rather than to identify what constitutes a constitutional violation. 1 W. LaFave Crim. Proc. § 2.9(h) (3d ed. 2007) (citations omitted). Delaware courts have recognized the distinction between prophylactic and substantive Miranda violations. See Brank v. State, 528 A.2d 1185, 1187 (Del. 1987) (recognizing prophylactic distinction enunciated in Edwards, 451 U.S. at 484-85); see also Fleming v. State, 1992 WL 135159, at *2, 609 A.2d 668 (Del. 1992) (TABLE); State v. Bryan, 551 A.2d 807, 813 (Del. Super. 1988), rev'd, 571 A.2d 170 (Del. 1990); Wainwright v. State, 504 A.2d 1096, 1101 (Del. 1986); State v. Cabrera, 2000 WL 33113956, at *13, 19 (Del. Super. Dec. 19, 2000); State v. Siple, 1996 WL 528405, at *21 (Del. Super. July 19, 1996); State v. Brotman, 1991 WL 138421, at *6, 8 (Del. Super. July 11, 1991) (holding that prophylactic distinction should not be utilized . . . to bar an otherwise freely given statement made immediately following the recitation of Miranda warnings. ); State v. Flamer, 1989 WL 70893, at *10 (Del. Super. June 16, 1989) (refusing to retroactively apply prophylactic distinction). 55 Michigan v. Tucker, 417 U.S. 433, 444 (1974); see also Edwards v. Arizona, 451 U.S. 477, 492 (1981) (POWELL, J., concurring). Requiring Miranda warnings before custodial interrogation provides practical reinforcement for the Fifth Amendment right. Michigan v. Tucker, supra, 417 U.S. at 444. 56 470 U.S. 298 (1985). 57 Id. at 301. 20 robbery scene and was then taken to the police station. 58 When again questioned after receiving Miranda warnings and waiving his rights, the defendant offered a detailed confession.59 While the Court found the initial brief statement inadmissible because the police failed to administer Miranda warnings,60 the Court nevertheless held that Miranda did not bar subsequent statements obtained in compliance with Miranda.61 The Court explicitly rejected the fruits of the poisonous tree doctrine as to the particular facts in that case because, while the doctrine applies to searches and seizures under the Fourth Amendment, it did not apply where Miranda warnings were not administered. 62 One prominent authority has stated that [v]iolation of Miranda s prophylactic safeguards does not in itself create a coercive atmosphere that renders involuntary any subsequent, properly warned, statement. 63 Rather, the inquiry is whether, in fact, the second statement was also voluntarily made, considering the 58 Id. 59 Id. at 301-302. 60 Id. at 317. 61 Id. at 318. 62 Id. at 303-04 (The fruits of the poisonous tree doctrine should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment. ) 63 3 W. LaFave Crim. Proc. § 9.5(a) (3d ed. 2007). 21 surrounding circumstances and the entire course of police conduct with respect to the suspect. 64 The Elstad approach often looks to similar fruits of the poisonous tree factors, including temporal attenuation, intervening circumstances, and the flagrancy of the coercive practices that rendered the initial confession involuntary, 65 but focuses less on the suspect s willingness to make a second statement, than a fruits analysis. 66 The United States Supreme Court has thus explained the test for analyzing whether a prior unwarned statement (a mere prophylactic Miranda violation) taints a subsequent statement. 2. Analysis of Authorities from Other Jurisdictions Some states have rejected Elstad and ruled to the contrary as a matter of state law that a prior unwarned statement automatically taints a second statement, in effect affording defendants greater protection than required by the Fifth Amendment of the United States Constitution. 67 Other states interpreting Elstad have limited its 64 Elstad, 470 U.S. at 318. 65 See, e.g., United States v. Lopez, 437 F.3d 1059 (10th Cir. 2006); Holland v. McGinnis, 963 F.2d 1044 (7th Cir. 1992); Leon v. Wainwright, 734 F.2d 770 (11th Cir. 1984); People v. Medina, 25 P.3d 1216 (Colo. 2001); State v. Schroff, 206 Conn. 182, 536 A.2d 952 (1988); Commonwealth v. Meehan, 377 Mass. 552, 387 N.E.2d 527 (1979). 66 3 W. LaFave Crim. Proc. § 9.5(c) (3d ed. 2007). 67 See, e.g., Commonwealth v. Smith, 412 Mass. 823 (1992); People v. Bethea, 67 N.Y. 2d 364 (1986). 22 holding strictly to its essential facts because Elstad addressed only a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect s ability to exercise his free will... 68 Specifically, and even assuming the first confession s voluntariness, some courts have distinguished Elstad and applied a fruits analysis where the police failed to honor the defendant s invocation of his right to silence. 69 The Supreme Court foreshadowed this future distinguishing in Elstad when the majority wrote that inapposite are the cases the dissent cites concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation. 70 Since Elstad, the United States Supreme Court has apparently not explicitly addressed whether the analysis differs when an invocation of the right to silence in the first statement is not honored. However, in some state courts addressing the issue, the analysis has differed. In State v. Hartley, 71 the New Jersey Supreme Court analyzed an interrogation where the interviewers did not scrupulously honor a 68 Elstad, 470 U.S. at 309. 69 State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986); State v. Crump, 834 S.W. 2d 265 (Tenn.1992); Osburn v. State, 2009 Ark. 390, 326 S.W. 3d 771 (2009). 70 Elstad, 470 U.S. at 312 n.3. 71 103 N.J. 252 (1986). 23 defendant s invocation of his right to silence. 72 After not honoring the defendant s invocation, the interrogator failed to readminister Miranda warnings before resuming the interrogation. 73 The Court held that the failure to scrupulously honor the defendant s invocation was a constitutional violation and that all subsequent statements were inextricably entwined and also violated the defendant s rights. 74 The Hartley court reasoned that the distinguishing factor was that the Miranda flaw in Elstad was merely a failure to administer warnings, which was a prophylactic violation, whereas ignoring the defendant s invocation was a substantive constitutional violation. 75 By determining that not scrupulously honoring the previously invoked right to silence was a constitutional violation, the court reasoned the fruit of the poisonous tree doctrine was compelled. 76 Hartley concluded: [T]he second statement, coming as it did on the heels of if not in tandem with the first, unconstitutionally-obtained, compelled statement, was unavoidably tainted. The most generous and indulgent view of the record cannot generate a conclusion of sufficient attenuation between the first and second interrogations to dissipate the taint. The second 72 Hartley, 103 N.J. at 267. 73 Id. at 258-59. 74 Id. at 279. 75 Id. at 283-84. 76 Id. 24 statement, chameleon-like, retains the coloration of the first as a matter of law, and hence must itself be deemed to have been unconstitutionally compelled. 77 Other state courts have made the same distinction between mere prophylactic Miranda violations and constitutional violations of the right to remain silent. In State v. Crump, 78 the Supreme Court of Tennessee reasoned that because a defendant s right to silence had not been scrupulously honored, it tainted a subsequent confession. 79 There, a defendant was administered Miranda warnings and then questioned about his escape from confinement and subsequent crime spree. 80 The defendant invoked his right to remain silent and was then driven around by police and interrogated for an additional forty-five minutes, during which the car retraced the defendant s escape route. 81 During the drive, the defendant incriminated himself. 82 After returning to the station and receiving renewed Miranda warnings, the defendant gave a taped confession.83 77 Id. at 284. 78 834 S.W.2d 265 (1992). 79 Id. at 270. 80 Id. 81 Id. at 266. 82 Id. 83 Id. 25 The Tennessee Supreme Court found that the defendant s constitutional right to silence in his first statement was violated because his invocation was not scrupulously honored and that the violation was of a constitutional magnitude. 84 Therefore, the court conducted a fruits analysis, 85 and found the second taped confession inadmissible. 86 The Arkansas Supreme Court has also recently embraced similar reasoning.87 While the reasoning of these jurisdictions is not binding upon this Court s determination, they are instructive considering the lack of relevant Delaware precedent. 3. The Unique Framework of this case and Delaware Law This case is uniquely positioned because of Crawford s clarification requirement and its application to an ambiguous invocation of the right to remain silent in Draper. The clarification approach to ambiguous invocations of the right to 84 Id. at 270 (citing Hartley, 103 N.J. 252 at 273; See also Wainwright v. Greenfield, 474 U.S. 284, 293 (1986) (invocation of the right to silence after Miranda warnings is of constitutional dimension ). 85 Crump, 834 S.W.2d at 271. 86 Id. at 272. 87 Osburn v. State, 2009 Ark. 390 (2009) (finding that a police failure to honor Miranda right to counsel invocation, during a first statement, required a fruits analysis to determine whether a subsequent statement was tainted. The court found that because the prior statement was constitutionally flawed, the subsequent confession was a fruit of the earlier statement and required suppression.). 26 remain silent or the right to counsel is the law in a minority of jurisdictions. 88 It is unclear if any jurisdiction has addressed whether an unclarified ambiguous invocation taints a subsequent statement. To resolve this question, the Court must seek guidance from related Delaware precedent. 4. Relevant Delaware Jurisprudence As stated earlier, this case presents an issue of apparent first impression in Delaware, namely, whether a subsequent statement is tainted when it follows an earlier statement s unclarified ambiguous invocation of the right to silence. While Delaware courts have addressed whether subsequent statements are tainted by flawed prior statements, Delaware courts have apparently not analyzed a taint following an unclarified ambiguous invocation. In Laury v. State, 89 the Delaware Supreme Court held that a subsequent identical statement made at a police station with a valid Miranda waiver was 88 3 W. LaFave Crim. Proc. § 9.5. (c) (3d ed. 2007); see, e.g., Martin v. Wainwright, 770 F.2d 918 (11th Cir. 1985). See also United States v. Pena, 897 F.2d 1075 (11th Cir. 1990); Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989); Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987); State v. Flower, 161 Ariz. 283, 286 (1989) (defendant's silence, after being advised of his rights and asked if he wanted to answer questions, created an ambiguity, so officer's clear duty was either to cease all interrogation or to clarify whether Flower was exercising his right to silence ); Sanders v. United States, 567 A.2d 55 (D.C. App. 1989); Owen v. State, 560 So.2d 207 (Fla. 1990); The rule, however, permits clarification, not questions that, though clothed in the guise of clarification, are designed to, or operate to, delay, confuse, or burden the suspect in his assertion of his rights. Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987). 89 260 A.2d 907 (Del. 1969). 27 admissible despite following a prior statement devoid of Miranda warnings. 90 The Court reasoned that a fruits analysis, while otherwise applicable, was inapposite because the initial statement was not custodial. 91 In Brinkley v. State, 92 the Delaware Supreme Court analyzed a defendant s argument that a second statement required suppression because it was tainted by a prior statement s Miranda violation under the fruits of the poisonous tree doctrine. The Court reasoned that a second statement was not tainted by the Miranda violation,93 and noted that the argument that the fruits of the poisonous tree made the subsequent statement inadmissible was foreclosed by Elstad. 94 Despite reaching the issue, the Court did not continue to analyze whether the subsequent statement was independently voluntary. However, the conclusion that the second statement was voluntary seems implied by the Court s holding that it was harmless error for the trial court to have admitted the subsequent statement. 95 Despite Brinkley s reasoning that the fruits analysis was foreclosed by Elstad in this context, this court has applied the fruits analysis to analyze whether 90 Id. at 909. 91 Id. 92 Brinkley v. State, 518 A.2d 91, 1986 WL 17992 (Del. Oct. 30, 1986) (TABLE). 93 Id. at *3. 94 Id. at *1 n.1. 95 Id. at *3. 28 a subsequent statement was tainted and has suppressed statements through that reasoning. 96 There, the Court held that factors such as the temporal disconnect, and lack of independence of the prior statement compelled suppression.97 In DeShields v. State, 98 the defendant argued that under Elstad, his fourth statement during one day of interrogation was tainted by the inadmissibility of the three prior statements, which the trial court had ordered suppressed under Miranda. The trial court had determined that the defendant s Miranda rights were violated when his interrogators ignored the defendant s request to postpone the questioning. 99 The Delaware Supreme Court did not apply Elstad. Rather, the Court found the fourth statement was barred because the invocation of the right to remain silent was not scrupulously honored. 100 Additionally, this court has suppressed statements offered through a two-step questioning process where interviewers gave Miranda warnings after eliciting unwarned statements. 101 In another case, incomplete Miranda warnings that caused 96 See State v Dorsey, 2001 WL 1079013, at *4-5. (Del. Super. Aug. 28, 2001). 97 Id. at *5. 98 534 A.2d 630 (Del. 1987). 99 Id. at 650-51. 100 Id. (citing Michigan v. Mosley, 423 U.S. 96 (1975)). 101 State v. Mattison, 2005 WL 406342 (Del. Super. Feb. 4, 2005) (holding that because the defendant received no sufficient break in questioning, the mid-interrogation Miranda warnings could not cure the coercion of the initial unwarned statement). 29 a first statement s suppression did not bar a subsequent statement that included complete Miranda warnings. 102 While none of these Delaware cases are directly applicable to the analysis in our case, they are instructive through analogy. 5. Admissibility Depends Upon Whether Both Statements Were Voluntary. The critical consideration is whether the failure to clarify a defendant s equivocal invocation of the right to silence abridges the defendant s Fifth Amendment right of freedom from self-incrimination, or whether it merely violated Miranda s prophylactic requirements. If a Delaware court finds that the failure to clarify is of a constitutional magnitude and constituted a failure to scrupulously honor a defendant s right to remain silent, the Court would seemingly be required to conduct a fruits of the poisonous tree analysis to determine admissibility. In contrast, if the Court finds the failure to clarify merely shirked the prophylactic Miranda requirements, the Elstad independent voluntariness analysis would follow. Although not previously addressed, guidance is provided by relevant Delaware cases. In DeShields, the Delaware Supreme Court affirmed the trial court s finding that a defendant s right to remain silent was not scrupulously 102 State v. Sayles, 1997 WL 528080 (Del. Super. July 28, 1997) (holding that because incomplete Miranda warnings were administered, the statement was inadmissible until there was a complete Miranda administration.) 30 honored because the interviewer ignored the defendant s unambiguous invocation and continued the interrogation. 103 There, the defendant invoked his rights by requesting to postpone the questioning early in the interview. 104 In Dodson v. State, the Delaware Supreme Court found that the police officer did not scrupulously honor a defendant s invocation where the defendant invoked by stating early into questioning about a murder that he would not make a statement until later. 105 Despite that request, the defendant was questioned for forty-five minutes about a different murder before the officer resumed questioning about the original murder. 106 In Tucker v. State, 107 the Delaware Supreme Court found an invocation was not scrupulously honored when a defendant stated he did not wish to make a statement immediately after receiving Miranda warnings. 108 Thus, in DeShields, Dodson, and Tucker, the defendants invocations of the right to remain silent were early in the questioning process and found unambiguous. 103 DeShields, 534 A.2d at 651 n.28. 104 Id. at 634. 105 Dodson, 512 A.2d at 762. 106 Id. 107 411 A.2d 603 (Del. 1980). 108 Id. at 604-06. 31 6. The Unclarified Ambiguous Invocation Constituted Merely a Prophylactic Miranda Violation. In this case, Defendant invoked his right to silence ambiguously and several hours into the interrogation process during his first statement. Although Draper held that a request for one s mother was an ambiguous invocation of the right to silence, it is distinguishable from the prompt, legally unambiguous invocations in DeShields, Dodson, and Tucker. 109 When a police officer ignores an invocation of the right to remain silent and continues interrogations despite the defendant s invocation being early and unambiguous, presumably, that would constitute a failure to scrupulously honor the defendant s invocation. Conversely, when a defendant s invocation is ambiguous, in the middle of the interrogation process, and the officer does not ignore the request, but fails to clarify the defendant s intent, the circumstances are different. While the former would appear of a constitutional magnitude and implore the fruits analysis, the latter does not. 110 109 Although in each case the court did not explicitly address whether the invocation was ambiguous, each case predates Crawford. Therefore, the Delaware Supreme Court would presumably never have analyzed the invocations if it did not consider them unambiguous. 110 If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Elstad, 470 U.S. at 309. 32 The Crawford clarification requirement is a matter of Delaware constitutional law, an added protection that aims to clarify mere potential invocations of Fifth Amendment rights. There is no additional Delaware constitutional protection involved in a taint analysis. Whether a taint attaches to a subsequent statement is strictly a United States Constitutional analysis. It appears to this Court that to stretch Crawford such that its noncompliance imparts further United States Constitutional scrutiny beyond the United States Supreme Court s own analysis is an unwarranted extension of Crawford s holding. 111 Therefore, this Court finds that the failure to clarify an ambiguous invocation of the right to remain silent is not of a United States constitutional magnitude that necessitates analysis under the fruits of the poisonous tree doctrine, but rather is a prophylactic Miranda violation. This Court will analyze both statements voluntariness according to Elstad. 7. While Inadmissible after Defendant s request for his mother, the December 7 Statement was Voluntary and Not Coerced. A statement s voluntariness is determined under the totality of the circumstances, 112 and the query is whether the defendant s will was overborne 111 Notably, while LaFave analyzes ambiguous invocations and separately analyzes whether a subsequent statement is tainted by a first statement s impropriety, supra §§ 6.9(g), 9.5, LaFave does not address whether a subsequent statement is tainted by an unclarified ambiguous invocation of the right to remain silent. 112 DeJesus, 655 A.2d at 1196 (citations omitted). 33 when the statement was elicited. 113 A court should evaluate the specific tactics used in the interrogation and the characteristics of the defendant. 114 In DeJesus v. State, the Delaware Supreme Court found that the lack of threats and police coercion did not reach the requisite level of overreaching, outrageous behavior, or coercive government misconduct required to make a statement involuntary. 115 [T]he psychological and physical condition of the accused are significant in the voluntariness calculus only to the extent that the police exploit such characteristics to elicit incriminating statements from him. 116 Even with the detective s failure to clarify Defendant s intention during the December 7 statement when Defendant ambiguously invoked his right to remain silent, nothing about the detective s actions made Defendant s statement involuntary. Defendant s December 7 statement has been held inadmissible on different grounds, notably, that by failing to clarify Defendant s intention, Miranda s prophylactic requirements were violated. 117 No evidence has been proffered suggesting Defendant s will was overcome through overreaching, 113 Id. (citations omitted). 114 Id. (citing Baynard v. State, 518 A.2d 682, 690 (Del. 1986) 115 Id. at 1196-97 (quoting Colorado v. Connelly, 479 U.S. 157, 165 (1986)). 116 Id. (citation and quotation marks omitted). 117 A Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements. Elstad, 470 U.S. at 306 n.1. 34 outrageous conduct, or coercive government misconduct. Other than the failure to clarify the ambiguous invocation, nothing about the December 7 statement indicates the statement was coerced; therefore, Defendant s December 7 statement was voluntary. 8. The December 9 Statement Was Voluntarily Made and is Admissible. Having determined that Elstad is applicable, the inquiry for the December 9 statement is whether, in fact, the second statement was also voluntarily made, considering the surrounding circumstances and the entire course of police conduct with respect to the suspect. 118 [W]hen seeking to use a confession tainted by an earlier involuntary confession, the State has . . . the burden of proving . . . that the later confession . . . was not directly produced by the existence of the earlier confession. 119 In assessing whether an initial inadmissible interrogation taints a subsequent interrogation, courts have considered whether: 120 (1) there was a break in the stream of events sufficient to insulate the statement from the effect of the prior coercion, 118 Elstad, 470 U.S. at 318. 119 State v Dorsey, 2001 WL 1079013, at *4 (Del. Super. Aug. 28, 2001) (citing Darwin v. Connecticut, 391 U.S. 346, 351 (1968)); see also Brown, 422 U.S. at 604 (holding that it is government s burden to prove that an initial and subsequent confession are admissible.) 120 In briefing, Defendant relied proffered tests for determining whether a prior statement s taint impacts a second statement. Although not perfectly analogous because the tests assumed the first statement s coercion, rather than a mere prophylactic violation, Defendant s most instructive proffered test is distinguished herein nevertheless. 35 (2) it can be inferred that the coercive practices had a continuing effect that touched the subsequent statement; (3) the passage of time, a change in the location of the interrogation, or a change in the identity of the interrogators interrupted the effect of the coercion, and (4) the conditions that would have precluded the use of a first statement had been removed ¦. 121 The first statement does not sufficiently taint Defendant s second statement to merit suppression. Defendant was interrogated two days after his initial statement. By then, he had spoken with his mother and no longer requested her presence. This Court has already found that no coercive practices corrupted the first statement. Therefore, no lingering coercive effect could reasonably have impacted the second statement. The interrogator may have been the same, but no coercion lingered as a result. Finally, although Defendant had previously ambiguously invoked his right to silence, two days later he was administered fresh Miranda warnings in a new location and did not invoke his rights again. That the second statement corrected first statement inaccuracies or referenced the first statement does not impact the analysis. The admissibility of Defendant s 121 Williams v. Jacquez, 2011 WL 703616, at *25 (E.D. Cal. Feb. 18, 2011) (citing United States v. Patterson, 812 F.2d 1188, 1192 (9th Cir. 1987)); see also Brown v. Illinois, 422 U.S. 590, 60304 (1975) (in assessing the voluntariness of a second confession following a prior involuntary confession, the court looks to (1) the temporal proximity of the coercive misconduct to the confession; (2) whether intervening circumstances attenuate and dissipate the coercive effects of the misconduct; and (3) the purpose and flagrancy of the prior misconduct. ). 36 December 9 statement turns on whether it was knowingly and voluntarily made. 122 No further purpose is served by imputing taint to subsequent statements obtained pursuant to a voluntary and knowing waiver. 123 Therefore, this Court finds that Defendant s December 9 statement is admissible and Defendant s Motion to Suppress it is DENIED. CONCLUSION Defendant s Final Amended Motion to Suppress Statements is GRANTED IN PART and DENIED IN PART. Defendant s first Statement on December 7 is suppressed beginning with Defendant s first request for his mother. This request constituted an ambiguous invocation of the right to remain silent and required clarification. The failure to clarify Defendant s ambiguous request requires the statement s suppression from that point forward. Therefore, the Motion to Suppress the December 7 Statement is GRANTED IN PART and DENIED IN PART. The State may not use the suppressed portion of the statement in the State s case-inchief; whether the suppressed portion may come into evidence under other circumstances will be determined at a later time. Defendant s Motion to Suppress the December 9 statement is DENIED. Although the December 7 statement is inadmissible because of its prophylactic 122 Elstad, 470 U.S at 309. 123 Id. at 318 (quotation marks omitted). 37 Miranda violation, Defendant s first statement was voluntary and not coerced, therefore his second statement was not tainted by any first statement impropriety. IT IS SO ORDERED. ____________________ Richard R. Cooch, R.J. oc: Prothonotary 38
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