897 P.2d 292 (Okla.Crim.App. 1995), F-93-324, LaFevers v. State

Docket Nº:F-93-324.
Citation:897 P.2d 292
Party Name:Loyd Winford LAFEVERS, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:May 16, 1995
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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897 P.2d 292 (Okla.Crim.App. 1995)

Loyd Winford LAFEVERS, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-93-324.

Court of Criminal Appeals of Oklahoma.

May 16, 1995.

Order Denying Rehearing and Directing Issuance of Mandate June 21, 1995.

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An Appeal from the District Court of Oklahoma County; Thomas C. Smith, District Judge.

Loyd Winford LaFevers was convicted of First Degree Murder and Third Degree Arson in Case No. CRF-85-3254, After Former Conviction of a Felony, in the District Court of Oklahoma County, sentenced to death and forty years incarceration, and appeals. The Judgments and Sentences for First Degree Murder and Third Degree Arson are AFFIRMED.

Robert J. Mildfeld, Catherina Burton, Asst. Public Defender, Oklahoma City, for defendant at trial.

Lou Keel, Susan Caswell, Asst. Dist. Attys., Oklahoma City, for the State at trial.

Vincent Antonioli, Asst. Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, for appellant on appeal.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.

OPINION

CHAPEL, Vice Chief Judge:

Loyd Winford LaFevers was tried by jury before the Honorable Thomas C. Smith in the District Court of Oklahoma County. In Case No. CRF-85-3254 he was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7, and Third Degree Arson in violation of 21 O.S.1981, § 1403(A), After Former Conviction of a Felony. At the conclusion of the first stage of trial, the jury returned a verdict of guilty. 1 During sentencing, the jury found 1) the murder was especially heinous, atrocious, or cruel; 2) there was a probability that LaFevers would commit criminal acts of violence that would constitute a continuing threat to society; and 3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. LaFevers was sentenced to death for the murder conviction and forty years incarceration for arson. From these convictions LaFevers has perfected his appeal, raising twenty-two propositions of error.

Around 10 p.m. on June 24, 1985, LaFevers and Randall Cannon 2 broke into 84-year-old

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Addie Hawley's house. The two ransacked the house, beat Hawley, forced her into her Buick, and drove off. At some point they put Hawley in the trunk. They stopped and filled a bottle or gas can with gas. Eventually LaFevers and Cannon stopped near a vacant lot, got Hawley from the trunk, beat her again, then poured gasoline on her and set her afire. They drove the Buick to another vacant area a short distance away and set it on fire as well. Witnesses saw the two with a gas can by the car and running from the scene. Before midnight, firefighters found Hawley still alive. She died about 5:30 a.m. of both blunt force head trauma and burns covering 60-65% of her body. Either injury would have caused death.

PRETRIAL ISSUES

LaFevers argues in Proposition III that the trial court erred in overruling his motion to suppress his pretrial custodial statements and admitting these statements over his objection because he invoked his right to counsel. Where evidence taken in camera is sufficient to support a trial court's ruling that a defendant's statements are voluntary and admissible, that ruling will not be disturbed on appeal. 3 In LaFevers' Jackson v. Denno hearing Officer Mitchell testified he questioned LaFevers to determine the extent of his request for counsel. 4 LaFevers testified that he wanted an attorney when the talk turned to body samples because he knew this was serious, but he would have given body samples after talking with an attorney. As discussed below, evidence supported the trial court's ruling that LaFevers' statements were voluntary. Additional evidence presented at trial included cassette tapes of this interrogation.

LaFevers was arrested at about 8:00 a.m. on June 26, 1985, and Officer Mitchell began his initial questioning about 8:30 a.m. LaFevers waived his Miranda rights, answered questions for about fifteen minutes, and surrendered his shirt and shoes. Mitchell asked LaFevers if he would give the police body samples, and LaFevers said yes, as soon as he spoke to a lawyer. Mitchell assured LaFevers he had that right. LaFevers told Mitchell that he did not have a lawyer and that Mitchell would have to get him one. Mitchell asked whether he wanted the lawyer just for the body samples before talking further and LaFevers said he just needed to talk to one. Mitchell then asked if LaFevers wanted to terminate their interview; LaFevers said no, they could leave "this" on, gesturing at the tape recorder. 5 Again Mitchell asked LaFevers if he wanted to stop the interview since he said he wanted a lawyer. LaFevers asked when he could get a lawyer. Mitchell told LaFevers that it would be up to the courts, he could get a lawyer with no problem, and asked again whether LaFevers was finished talking. LaFevers said "No, I'll talk to you."

LaFevers argues that the trial court erroneously considered the totality of the circumstances, that LaFevers unequivocally invoked his right to counsel, that he equivocally invoked the right, that his final statement did not waive the right, and that admission of the statement was not harmless. A confession must be the product of an essentially free and unconstrained choice. When determining the voluntariness of a confession the court must consider the totality of the circumstances, including the character of

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the defendant and the details of questioning. 6 The trial court correctly looked at the entire context of the statement when determining that the confession was admissible.

After a defendant asks for counsel he is not subject to further questioning unless he has counsel or reinitiates interrogation with law enforcement personnel. 7 When counsel has been requested, questioning must cease and officers may not initiate contact without counsel present whether or not a defendant has consulted with counsel. 8 Custodial interrogation equals both express questioning and any words or actions by police that they should know are reasonably likely to elicit an incriminating response; the focus is on the defendant's perception, not an officer's intent. 9 A defendant reinitiates interrogation when he represents a desire to open up a more generalized discussion relating directly or indirectly to a criminal investigation. 10

LaFevers first argues that his statement, "Yeah, as soon as I talk to a lawyer", was an unequivocal expression of the desire for the assistance of an attorney in dealing with a custodial police interrogation. 11 LaFevers directs this Court to two recent cases in which an unequivocal request for counsel should have acted as a bar to further inquiry. In Sattayarak v. State 12 the questioning officer was clearly informed that the defendant had invoked her right to counsel, but began questioning after the defendant asked where they were going. This Court held that inquiry did not reinitiate contact sufficient to waive the previous invocation. In Booker v. State 13 officers continued questioning after the defendant said "I would rather talk to a lawyer, first," a clear and concise request for counsel. Both cases are distinguishable from LaFevers' situation. LaFevers argues that Mitchell interpreted his statements as requests for counsel, that Mitchell improperly questioned why he wanted counsel, and that in Mitchell's mind LaFevers had unequivocally invoked his right. One wonders how LaFevers can make this last assertion, which is certainly not supported by Mitchell's own testimony. Clearly Mitchell believed LaFevers had made some sort of request for an attorney, but the initial statement came in the context of body samples, after a valid Miranda waiver and after fifteen minutes of questioning. Nowhere did LaFevers unequivocally say that he wanted an attorney right then or wanted questioning to end.

LaFevers then suggests that his initial statement may have been ambiguous but says his next two comments--that Mitchell would have to get him an attorney and that he just needed to talk to one--clarified his intentions. Courts must give a broad interpretation to requests for counsel where a defendant's words, understood as ordinary people would understand them, are ambiguous. 14 After a knowing and voluntary waiver of Miranda rights, law enforcement officers may continue questioning through equivocal statements until a suspect clearly requests an attorney. 15 Here, LaFevers' statements do not clearly indicate whether LaFevers wanted an attorney before he agreed to give body samples or simply wanted to stop talking altogether. Any ordinary person might find the exchange ambiguous, especially given LaFevers' repeated mention of a lawyer coupled with his refusal to say he wanted to

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stop the interview. Mitchell followed the only reasonable course open to him. He avoided any substantive interrogation until the problem was clarified and questioned LaFevers only regarding his willingness to talk and wish for an attorney. The record does not support any suggestion that Mitchell phrased his requests to urge LaFevers to talk, or that he gave LaFevers any impermissible advice. Contrary to the suggestion in LaFevers' brief, Mitchell did not tell LaFevers he would not receive counsel. LaFevers correctly contends that his final statement, "No, I'll talk to you," did not create any ambiguity in his previous statements. That statement resolved the considerable ambiguity to that point.

LaFevers' contention that his final statement, "No, I'll talk to you", was not a valid waiver, presupposes that this Court agrees LaFevers invoked his Fifth Amendment right. In fact LaFevers did not...

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