Dennis v. State
| Decision Date | 06 May 1999 |
| Docket Number | No. F-97-1220.,F-97-1220. |
| Citation | 990 P.2d 277,1999 OK CR 23 |
| Parties | Joseph Jerome DENNIS, Appellant v. STATE of Oklahoma, Appellee |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Richard L. Weldon, Weldon & Smith, Chickasha, Oklahoma, Attorney for Defendant at trial.
Gene Christian, District Attorney, Bret T. Burns, Assistant District Attorney, Chickasha, Oklahoma, Attorneys for State at trial.
Mark P. Hoover, Appellate Defense Counsel, Norman, Oklahoma, Attorney for Appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Steven E. Lohr, Assistant Attorney General, Oklahoma City, Oklahoma, Attorneys for Appellee on appeal.
¶ 1 Joseph Jerome Dennis was tried by jury and convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(A), in the District Court of Grady County, Case No. CF-96-112. In accordance with the jury's recommendation, the Honorable James Winchester sentenced Dennis to life imprisonment without the possibility of parole. Dennis appeals this conviction and sentence and raises two propositions of error.
¶ 2 On Monday, April 15, 1996, Dennis went to Don's Friendly Auto in Chickasha. Mark Rogers, a mechanic, had been working on Dennis's girlfriend's car for several weeks. Rogers had done other auto work for Dennis and had sold him a car recently. Witnesses saw Dennis and Rogers arguing the preceding Friday and Saturday. After the Friday argument, Dennis told another mechanic that if Rogers gave him trouble he'd "cap him in the forehead." As Dennis and that mechanic bent over his car engine, a .45 Glock semi-automatic pistol fell out of Dennis's jacket.
¶ 3 According to Dennis's confession, on April 15th Rogers refused to continue working on his girlfriend's car. Dennis pulled his gun but did not point it and told Rogers not to make him do this, to fix his car. Rogers grabbed the gun and it went off. The bullet entered Rogers's forehead between his eyes, killing him instantly; it apparently then went through a wall clock and the metal building wall and landed well away from the building, where police later found it. Dennis drove away in Rogers's car, returned and pulled the garage doors shut, drove away again, returned and left the car. Witnesses saw him drive the car and close the doors.
¶ 4 Dennis was questioned on April 17th and 18th and twice on May 1st. Each time he received Miranda1 warnings and waived his rights. During the first three interviews he denied any involvement and suggested names of other people who might have killed Rogers. On May 1st police picked him up at his girlfriend's apartment. Before they left, Ms. Hodge-Sanchez said "they" would not talk to police without talking to a lawyer. Dennis said something like, "Yeah, we would." However, Dennis told officers he did not need a lawyer and would talk with them, and went to the police station voluntarily. Before the interview began he was allowed to sit in the reception room for twenty or thirty minutes talking to Hodge-Sanchez and his mother. The women discussed getting an attorney, and Dennis said again that he had nothing to hide, did not need a lawyer, and would talk to police. During the interview, he waived his Miranda rights and denied any knowledge of the crime. After Captain Bray demonstrated his theory of the crime by poking Dennis in the head, Dennis yelled for police, claimed this was a "racial thing", and asked for an attorney. Bray responded that was fine, he could not talk to Dennis any more, and Dennis was going to jail because too many people put him at the scene. As Bray left the room, Dennis called him back and said he had nothing to hide, did not need a lawyer, and would talk to police. After Officer Adams told Dennis he knew Dennis had owned and sold a .45 Glock semi-automatic pistol, Dennis changed his story. He was again warned and waived his Miranda rights, and told Captain Bray and Adams the story above. This portion of the interview was taped.
¶ 5 While Dennis was confessing, Ms. Hodge-Sanchez hired attorney Richard Weldon on Dennis's behalf. Weldon called the station and demanded to speak with Dennis. Police referred the request to Assistant District Attorney Bret Burns, who was present at the police station. Burns refused to allow Weldon to see Dennis until after he had been charged and booked, as Dennis had neither requested an attorney nor hired Weldon. Weldon telephoned District Judge Van Dyck for assistance; officers told Judge Van Dyck that Weldon was not Dennis's counsel since Dennis had not requested counsel or personally retained Weldon. Weldon then went to the station where he was refused access.
¶ 6 In Proposition I Dennis claims that he invoked his right to counsel while in custody of the Chickasha police detectives, so any statement made by him should have been suppressed as a product of police-initiated questioning. Dennis mistakenly asserts that he invoked his right to counsel on May 1st, while still at Hodge-Sanchez's apartment, when he said something like, "Yeah, we would," after Hodge-Sanchez said they would only talk to police after talking to a lawyer. His entire proposition depends on this Court's agreement that this extremely vague statement invoked his right to counsel. This statement does not even reach the level of an ambiguous request for counsel, and, of course, police are not required to stop questioning when faced with an ambiguous request.2 Dennis inexplicably claims police impermissibly initiated conversation after this statement. He admits that, before leaving the apartment, Dennis told officers he had nothing to hide, did not need an attorney, and would talk with them. Once at the station, he twice waived his right to an attorney.
¶ 7 Dennis claims he was in custody when he was taken in for questioning. He points to the unusual number of uniformed policemen who went to Hodge-Sanchez's apartment and speculates that, although the record is silent, Dennis "surely must have felt compelled to go with them."3 He admits officers testified Dennis was free to leave but does not mention that Detective Adams told Dennis before the interview he was free to leave but it would not be in his best interest. He points to Captain Bray's testimony that he knew Dennis had committed the crime and suggests that the detectives' intent was to question Dennis until he confessed. Even if this is true, it does not mean Dennis was in custody when he was taken to the station. As he admits, the issue is not the officers' intentions, but whether a reasonable person in Dennis's place would have thought he was free to leave.4 Dennis also supports this claim with the "facts" that Captain Bray poked him during a demonstration of the crime and Dennis yelled for police. Whether or not Dennis felt he was free to leave during the interview at the station, these facts can have no bearing on his feeling regarding his position at the time he was taken in for questioning, as they had not then occurred.5
¶ 8 Dennis did not invoke his right to counsel while at his girlfriend's apartment. The record does not support his claim that he was in custody when taken to the police station. Even if he were, he explicitly twice waived his Miranda rights and also twice told police that he did not need an attorney and would talk to them. The trial court did not abuse its discretion in failing to suppress Dennis's May 1, 1996 statements. This proposition is denied.
¶ 9 In Proposition II Dennis claims the trial court erred in failing to grant the motion to suppress his statements because he should have been informed his attorney was present and available to consult with him. Dennis claims that while he was in the interview room confessing, an attorney retained for him was just outside the door, loudly demanding to see him. In Lewis v. State,6 decided in 1984, this Court held a Miranda waiver is not voluntary where a defendant is not told counsel is present. Relying on the Oklahoma Constitution, the Court reasoned that a defendant cannot knowingly and intelligently waive his rights to counsel and against self-incrimination where he does not know that retained counsel is present and ready to consult with him before he waives his rights.7 This is true even though the attorney was hired by others acting on the defendant's behalf without his knowledge.8 The Court noted that an attorney has no right to see a client, but could not find that an accused knowingly and intelligently waived his rights "when it was not made known to him that his lawyer was, in effect, knocking at the jailhouse door."9 We recognized that a suspect may very well refuse to see an identified attorney and may waive his rights after knowing an attorney is available.10 However, we reasoned that he cannot knowingly waive his state rights to counsel and against self-incrimination when he is not informed a specific attorney is trying to reach him in order to consult about those very rights.11 Without holding police deception was required to create a constitutional violation, we noted with disfavor that there was some evidence that Lewis's attorney was purposefully kept from his client.12
¶ 10 In Moran v. Burbine,13 the United States Supreme Court reached the opposite conclusion. That 1986 decision held the federal constitution does not require police to inform a defendant who has not requested an attorney that one is present, reasoning that a defendant's ability to make a voluntary waiver should not be affected by developments of which he knows nothing. The Burbine Court noted that some states chose to interpret their own statutes or constitutions more broadly and limited its holding to the Fifth Amendment of the United States Constitution, holding that nothing in the decision prevented states from implementing different procedures on independent state grounds.14 The trial court, overruling Dennis's motion to suppress, noted the conflict between Burbine and Lewis and stated its ruling would give this Court a chance to "revisit" ...
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