Dewey v. State, 46854.
| Citation | 169 P.3d 1149 |
| Decision Date | 01 November 2007 |
| Docket Number | No. 46854.,46854. |
| Parties | Shelli Rose DEWEY, a/k/a Shelli Rose Castle, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Richard F. Cornell, Reno, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Gary D. Woodbury, District Attorney, and Robert J. Lowe and Alvin R. Kacin, Deputy District Attorneys, Elko County, for Respondent.
BEFORE PARRAGUIRRE, HARDESTY and SAITTA, JJ.
In this opinion, we consider whether the assertion of the Fifth Amendment right to remain silent under Miranda v. Arizona, by itself, is sufficient to also invoke the right to counsel that Miranda established as an additional means of securing and protecting the Fifth Amendment privilege against self-incrimination.1 We conclude that unless a suspect's assertion of the right to remain silent includes a clear, unequivocal, and unambiguous request for an attorney, it is not an invocation of the right to counsel under Miranda; thus, a suspect's exercise of the right to remain silent under Miranda, without more, does not operate as a request for counsel. We also conclude that the police may resume questioning a suspect who has invoked her right to remain silent only if they have "scrupulously honored" the suspect's prior exercise of her right to terminate questioning and issue a new set of Miranda warnings prior to reinitiating further interrogation.
In the early morning hours of September 12, 2004, Elko Police answered a hysterical "911" call from appellant Shelli Rose Dewey reporting that her husband, Steven, had been stabbed. During the call, Dewey commented three times that she did not know who stabbed Steven.
At the scene, Dewey appeared to be intoxicated and was marginally intelligible. Dewey told the police that her husband had been stabbed. The police looked inside the Deweys' pickup truck as well as the surrounding area for a weapon but could not locate one.
Several witnesses reported that Dewey and Steven had been drinking and creating a disturbance a few hours before the stabbing. At some point, the bartender asked the couple to leave. About thirty minutes thereafter, a witness reported seeing them arguing in the parking lot. Another witness also reported hearing a loud argument, followed by hysterical crying. This witness investigated the "ruckus" and saw Dewey draped over Steven, who was lying on his back next to or in close proximity to the couple's truck. According to this witness, Dewey was in obvious distress, frantically saying,
Although not a suspect at the time, Dewey was taken to the Elko Police Station for an interview on the morning of Steven's death. Once at the police station, Dewey was informed that the interview was being recorded. Detective Larry Kidd of the Elko Police Department advised Dewey of her Miranda rights and asked if she understood what Miranda rights were. Dewey answered, "I think so." Detective Kidd then had Dewey read the Miranda rights card line by line. Dewey initialed each line.
Twice during the initial interview, Detective Kidd explained to Dewey that even if she decided to answer questions "without a lawyer present," she could still stop the interview at any time. After reading Dewey the Miranda rights, the detective again confirmed that she understood. Dewey then asked if she was a suspect. Detective Kidd told her that she was. During a brief colloquy, Dewey indicated that she did not want to speak to anyone:
Dewey: Am I a suspect?
[Detective] Kidd: Uh, yes ma'am you are a suspect. Would you just go ahead and write and read that again for me?
Dewey: (inaudible)
[Detective] Kidd: You don't want to talk to anybody?
Dewey: No (inaudible).
[Detective] Kidd: Okay, well if you don't want to answer any question then we won't talk about it. We can't talk to you about it okay.
Dewey: And we'll go home. Take my kid back to the (inaudible). (Inaudible)
The interview ended immediately after the last inaudible response, and Dewey was placed under arrest.
At the jail, approximately two hours after the first interview, other police officers initiated a discussion with Dewey. Before any questioning began, Officer Connie Bauers asked Dewey to read the Miranda warnings contained within a waiver form. Dewey again read and signed the waiver form. The officers again told Dewey she could end the interview at any time.
During the second interview, Dewey admitted four times that she had "hit" Steven. Dewey told the police that she held a knife in her hand with the handle pointing outward and the blade flat across her palm. Dewey told the police officers that she intended to punch Steven but instead hit him with the knife. Dewey said the knife might be in the couple's truck. Based upon these comments, the police obtained a warrant, searched the pickup truck, and found a nine-inch knife underneath one of the seats, precisely where Dewey said it "might" be.
The police attempted to interview Dewey the next day at the jail. However, this time, she clearly and unequivocally invoked her right to counsel. Accordingly, the interview immediately ceased.
Ultimately, the State charged Dewey with open murder with the use of a deadly weapon. On a motion to suppress, the district court found that Dewey refused to speak to the police during the first interview, but that she had not clearly invoked her right to counsel.
At trial, the jury convicted Dewey of one count of second-degree murder with the use of a deadly weapon. Dewey now appeals from the judgment of conviction and argues that the inculpatory statements she made during the second interview were taken in violation of her constitutional rights and should have been suppressed as involuntary. We disagree, and for the reasons stated below, we affirm Dewey's conviction.
Dewey argues that her statements regarding the stabbing of Steven should have been suppressed on one or more of the following three grounds: (1) her statements were obtained in violation of her Fifth and Sixth Amendment rights under the United States Constitution, (2) her statements were obtained in violation of her Fifth Amendment right to remain silent, and (3) her statements were involuntary. We conclude that each of Dewey's arguments lack merit.2
Right to counsel
Dewey argues that when she answered, "No," to Detective Kidd's question, "You don't want to talk to anybody?" during the first interview, she invoked her right to counsel. Thus, she claims that her statements thereafter describing in a subsequent interview how she stabbed Steven were obtained in violation of her Fifth and Sixth Amendment rights. We disagree and conclude that substantial evidence supports the district court's determination that Dewey did not invoke her right to counsel during the first interview.
Initially, we note that Dewey's Sixth Amendment right to counsel was not at issue during the in-custody interrogation. The Sixth Amendment, which applies to the states through the Fourteenth Amendment,3 provides in pertinent part that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."4 As the United States Supreme Court has observed in Fellers v. United States, "[t]he Sixth Amendment right to counsel is triggered `at or after the time that judicial proceedings have been initiated'" either "`by way of formal charge, preliminary hearing, indictment, information, or arraignment.'"5
In this case, Dewey complains that she invoked and was deprived of her right to counsel during her in-custody interrogation, prior to the initiation of any adversarial judicial criminal proceedings. Dewey's right to have counsel present during that initial in-custody interrogation originates exclusively from the procedural safeguards that the Supreme Court adopted in Miranda to secure and protect the Fifth Amendment privilege against compulsory self-incrimination during the inherently coercive atmosphere of an in-custody interrogation. Thus, to the extent that Dewey complains that she was deprived of her Sixth Amendment rights during that interview, her argument is misplaced and without merit.
As noted, however, the Miranda decision does provide a suspect with a right to counsel as a means to protect and secure the Fifth Amendment privilege against compulsory self-incrimination. But police officers "have no obligation to stop questioning" a suspect under Miranda unless the suspect exercises the right to remain silent or makes an "unambiguous and unequivocal" request for an attorney.6 A request for counsel must be, at minimum, "some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney."7 The right to counsel "must be affirmatively invoked by the suspect" and requires more than an expression of one's desire to remain silent.8 In the instant case, Dewey did not ask for an attorney by explicitly invoking her right to counsel until the police initiated the third interview. The district court found that although Dewey had initially told the police that she did not want to talk to anybody, she did not make an unequivocal or unambiguous request for an attorney at that time.
The Supreme Court concluded in Connecticut v. Barrett that even a limited invocation of the right to counsel does not prohibit all further interrogation.9 In that case, after the police had provided Barrett with Miranda warnings, Barrett stated that he was willing to verbally discuss the incident but he would not "put anything in writing" without his attorney present.10 The Court held that the fact that the police 11
Here, Dewey made no request whatsoever for an "attorney." In comparison to...
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