Long v. State

• Decision Date: 14 September 1994
• Docket Number: No. F-87-923,F-87-923
• Citation: 1994 OK CR 60,883 P.2d 167
• Parties: Michael Edward LONG, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 167

883 P.2d 167

Michael Edward LONG, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-923.

Court of Criminal Appeals of Oklahoma.

Sept. 14, 1994.

An Appeal from the District Court of Muskogee County; William H. Bliss, District Judge.

Terry J. Hull, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Steven Spears Kerr, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION ON REHEARING

LANE, Judge:

Michael Edward Long, Appellant, was tried by jury and convicted of two counts of Murder in the First Degree. (21 O.S.1981, § 701.7) in Muskogee County District Court, Case No. CRF-87-161. The jury recommended the death penalty and the trial court sentenced the appellant to death for each count. In this perfected appeal the appellant challenges the admission of his confession, photographic evidence and statements of the victim; statements of the prosecutor made during closing argument in the second stage of trial; and second-stage jury instructions. We find no error warranting reversal or modification and affirm the judgment and sentence.

Michael Edward Long, Appellant, met Sheryl Graber when they worked together at a florist in Muskogee. He was strongly attracted to her sexually; she was uninterested in him. Armed with a 10 inch knife with a locking blade and .22 caliber pistol, Long drove to Graber's home on the evening of April 7, 1987 to demand sex from her. He parked some distance from her house.

Graber let him into her home, and when she rebuffed him he forced her to the floor. He stabbed her when she screamed. Graber managed to get to her front door, open it and yell for help. The appellant yanked her back inside and shut the door. When the neighbors ran to the home, the appellant opened the door just wide enough to tell them everything was alright; that Graber was just drunk. He then continued the attack. He stabbed Graber thirty one (31) times, twice breaking off pieces of his knife blade in her body, and shot her in the head and abdomen. He shot her four year old son, Andrew, twice at point blank range and stabbed him. The neighbors called the police who came and arrested Long who tried to flee from the house.

ISSUES PERTAINING TO THE ADMISSION OF EVIDENCE

In his first proposition of error the appellant argues his confession was inadmissible because it was involuntary. Appellant challenges two facets of voluntariness. First, he argues he was deceived by the investigator into believing the investigator was "on his side". Secondly, he argues the police did not scrupulously honor his right to remain silent. If these allegations are true, the confession was involuntary and should have been suppressed. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

The trial court conducted a Jackson v. Denno hearing to determine whether the appellant's confession was voluntary. See 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). At this hearing the defendant testified, and the State incorporated the testimony of the interrogating officers from the preliminary hearing.

Appellant testified he was read his rights from a card, and then told the police officer he did not understand them. Later at the Muskogee Police Department he was given a Waiver of Rights form which he read, understood and signed. The interrogating officer again explained his rights to him. The appellant testified he still did not understand his rights, but he did not tell this to the officer.

At the preliminary hearing Investigator Gary Sturm testified that when Appellant's confession was taken he introduced himself as an investigator for the District Attorney. He read Appellant his Miranda rights and gave him a Waiver of Rights form which the appellant read and signed. He testified the appellant stated he understood his rights. He also testified a uniformed policeman was present during the interrogation which was held at the Muskogee Police Station. Under these circumstances, we do not believe the appellant was misled into believing Investigator Sturm was "on his side". See Cartwright v. State, 695 P.2d 548, 551 (Okl.Cr.1985).

We must next determine whether the appellant invoked his right to silence. At the suppression hearing appellant was asked by his defense counsel whether during his interview with the police, in response to a question, he stated:

"I really don't want to answer this question. Why do you want to know?"

He affirmed he had responded in this way. During the same hearing defense counsel also asked the appellant:

Q: Why did you not tell them you wanted to stop?

A: Because Mr. Sturm wanted me to keep going, and I couldn't figure out why he was asking me so many questions.

Appellant argues his statement was an assertion of his right to silence which was ignored by the investigating officer in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant takes the position that when he stated, "I really don't want to answer that.", all questioning should have ceased. "Why do you want to know?", the question he asked immediately thereafter, should, according to the appellant's argument, be given no effect. In support of this position appellant directs the Court to Miranda, Id.; Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Miranda provides the starting point for analysis:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At that point, he has shown that he intends to exercise his Fifth Amendment privilege ...

384 U.S. at 473-74, 86 S.Ct. at 1627-28.

When the appellant stated, "I really don't want to answer that.", he asserted his Fifth Amendment privilege of silence. At this point, under Miranda the police were obliged to cease questioning. The uncontroverted facts of this case establish the police did immediately cease questioning. It was not until the appellant asked, "Why do you want to know?", that questioning continued. Compare, Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490. Given these facts, the dispositive issue is whether the appellant could reinitiate questioning, and whether in fact he did.

Waiver after assertion of a Fifth Amendment right has been most fully addressed in the context of the closely related Fifth Amendment right to counsel. We find the analysis persuasive, and adopt it for determination of the often interrelated issue of waiver of the Fifth Amendment right to silence.

As the United States Supreme Court explained in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) a person who asserts the Fifth Amendment right to counsel:

is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 (footnote omitted) (emphasis added).

Two years later in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) the Court put forth a two-stage analysis for use in determining whether the accused waived this Fifth Amendment right after having asserted it. Under Bradshaw, if an accused speaks to police after asserting the Fifth Amendment right, the statement must be examined to determine whether it "initiates further conversation". 462 U.S. at 1045-46, 103 S.Ct. at 2835. If it does, it must then be examined further to determine whether it evinces a "willingness and a desire for a generalized discussion about the investigation". Id. Each prong must be satisfied in order to find an accused waived the right to counsel after having asserted it.

Bradshaw presents a somewhat different case than the one before us, for some unknown period of time elapsed between the assertion of the right to counsel, and initiation of further communication by the accused. See, 462 U.S. at 1042, 103 S.Ct. at 2833. We do not find this distinction to place appellant's case outside the reach of Bradshaw.

Applying the Bradshaw analysis to the case before us, we find the appellant both initiated further conversation with the police and indicated a willingness and desire for further discussion about the investigation when he asked, "Why do you want to know?". In so doing, Appellant waived his previously asserted right to silence. We therefore turn to the final question in the analysis: whether the purported waiver was knowing and voluntary.

At the suppression hearing the following facts were developed. The appellant had been given the Miranda warnings prior to being questioned. He had achieved grades of "A" and "B" during two years of college, and he understood the Miranda warnings. He signed a waiver of rights, and spoke with the police. Questioning ceased when the appellant stated he did not want to answer a question. However, immediately after stating he did not want to answer a question the appellant initiated further communication with the investigator without any threat, promise, or other impropriety on the part of the police. These facts are sufficient to carry the State's burden to prove by a preponderance the waiver was knowing and voluntary. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The trial court properly denied appellant's motion to suppress.

In his next proposition of error the appellant argues the State failed to provide him with written notice of the evidence to be used in the second stage proceeding as required by Wilson v. State, 756 P.2d 1240 (Okl.Cr.1988). The State concedes no notice was given as required by 21 O.S.1981, § 701.10. However, the State argues this omission was both harmless, since the prosecutor cooperated fully with defense counsel, and waived under Green v. State, 713 P.2d...