Lovett v. State
| Decision Date | 15 April 1986 |
| Citation | 516 A.2d 455 |
| Parties | Jackie R. LOVETT, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Upon Appeal from Superior Court. Affirmed.
Edward C. Gill, Robert C. Wolhar, Jr. & Associates, P.A., Georgetown, for appellant.
Gary A. Myers, Deputy Atty. Gen., Dept. of Justice, Georgetown, for appellee.
Before CHRISTIE, C.J., McNEILLY, HORSEY, MOORE and WALSH, JJ. constituting the Court en banc.
In this case the defendant-appellant, Jackie Ray Lovett, presses several grounds for reversal of his convictions of first degree murder and possessing a weapon during the commission of a felony. His primary argument is that the Superior Court should have suppressed certain incriminating statements he made to police because those statements were obtained in violation of his right to counsel under the Federal and Delaware constitutions. We begin with a chronological account of the facts underlying this claim.
On June 24, 1982, the bodies of Lori Todd and Richard Bull were found floating in a tributary of the Pocomoke River in Maryland. Autopsies revealed that each had died from a bullet wound to the head. A subsequent joint investigation by Maryland and Delaware State Police indicated that the victims may have been killed in Delaware and their bodies dumped in nearby Maryland.
On each of the next four days, police talked to Charles Bower, a relative of Lovett, about the murders. Bower initially denied any knowledge of them, but on June 28, gave police a statement in which he claimed he was in a farmhouse near Delmar, Delaware, when Lovett took both Todd and Bull in back of the farmhouse and murdered them. Also on June 28, Lovett, who had previous exposure to the criminal justice system, 1 learned that he might be wanted on a murder charge in Delaware and traveled to Philadelphia to consult an attorney in that city. The attorney was unable to represent Lovett, but testified at trial that he cautioned Lovett not to make any statements to anyone until after seeking the advice of an attorney, and to make sure he got an attorney. The attorney testified "But he knew what I was talking about and he said that he certainly wouldn't be foolish enough to make any statements to any police authorities until he had gotten the advice of an attorney." On July 6, 1982, a Sussex County grand jury indicted Lovett for murder in connection with the deaths of Todd and Bull. A warrant for his arrest was issued the next day.
On July 15, 1982, Maryland State Police arrested Lovett when officers stopped an automobile in which Lovett was a passenger. Lovett had dyed his hair but the arresting officers, who were aware that a fugitive warrant had been issued for Lovett, had been informed he would be inside. Lovett was transported to the Maryland State Police Barracks in Salisbury and placed in the custody of Officer Megee, who had been investigating the Todd-Bull murders. Megee advised Lovett of his Miranda rights, and Lovett signed a typewritten form waiving those rights. Lovett also signed a typewritten form waiving his right of prompt presentment to a Maryland Commissioner, who would have advised Lovett of the charges against him, of his right to be represented by counsel, and other matters concerning bail, probable cause, and a preliminary hearing.
What happened next was disputed both in a suppression hearing before the Superior Court and at trial. At the suppression hearing Officer Megee gave the following account. He testified that he informed Lovett that first degree murder charges were pending against him, and that Lovett replied that "he knew what had happened." Megee then told Lovett that Charles Bower had been arrested in connection with the deaths of Todd and Bull and had implicated Lovett in both of them, at which point Lovett responded that Megee then told Lovett that he wished to obtain a statement from him, at which point Lovett asked whether it "would be any trouble to get an attorney." Construing Lovett's question as an invocation of his right to counsel, Megee ceased questioning Lovett. He attempted, without success, to telephone Lovett's attorney while Lovett "listen[ed] in at the phone as it rang to be sure that he understood that I was not trying to pull anything over on him and that, in fact, I couldn't get hold of his attorney." Megee did not resume discussion with Lovett about the murders, but instead completed the booking process, asking Lovett only routine booking questions such as his name, birthdate, and place of residence. He also prepared the application for a fugitive warrant to be presented to a Maryland commissioner. After completing this paperwork, he told Lovett "It's time to go now," at which point Lovett "spontaneously began talking about the murders of Gordon Gillis and Walter Scott that had occurred prior to the incident of Lori Todd and Richard Bull." Megee testified that "Once Mr. Lovett started talking about the Gillis-Scott murder, he eventually continued with his conversation into the Todd-Bull murder." During this statement Megee asked questions such as "Well, what then happened?," or "Then what did you do?," but no direct questions such as "Did you do this?," or "Did you do that?" After Lovett had talked "close to an hour" he attempted to put Lovett's statement on tape. On the tape Lovett simply renewed his request for counsel and acknowledged that Megee had previously attempted to contact counsel for him.
Megee again ceased all discussion about the murders and again sought to contact Lovett's attorney, eventually reaching an associate in his firm. The associate arrived at the barracks shortly thereafter and, after consulting with Lovett, informed Megee that no statement would be taped.
Lovett testified at the suppression hearing and contradicted Megee's testimony. Apparently resolving factual disputes in favor of the State, the Superior Court refused to suppress Officer Megee's testimony concerning Lovett's statements.
At trial Officer Megee testified substantially as he did at the suppression hearing. His testimony included a statement that after Lovett signed forms waiving his Miranda rights and his right to prompt presentment, "I advised Mr. Lovett that there was a lot of discussion that had been done with reference to this incident and that I felt that he could tell me exactly what happened and Lovett at that point in time indicated that, yes, he could tell me what happened, that Bowers was as guilty as he was and that he could tell me basically what happened." Megee claimed that after he told Lovett that Bower had implicated him in the murders "His response was that Bowers was just as guilty as he was."
Megee's trial testimony essentially replicated his testimony at the suppression hearing as to Lovett's initial request for an attorney, the unsuccessful attempt to contact Lovett's attorney, the subsequent completion of the routine booking process, and Lovett's lengthy spontaneous inculpatory statements concerning the murders of Gillis, Scott, Todd, and Bull following Megee's statement that it was time to leave. Lovett, on the other hand, testified at trial that he continuously requested an attorney during his conversations with Megee and that he never made incriminating statements to Megee. By its verdict the jury, inferentially at least, chose to disbelieve Lovett.
Lovett contends that the admission of these statements violated his right to counsel under the Sixth and Fourteenth Amendments. In Deputy v. State, Del.Supr., 500 A.2d 581, 589-90 (1985), we analyzed the accused's Sixth Amendment right to counsel under controlling decisional law and concluded:
that, at a minimum, a defendant is entitled to legal representation 'at or after the time that adversary judicial proceedings have been initiated against him.' Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972).... This principle applies whether proceedings are commenced by way of a formal charge, preliminary hearing, indictment, information, or arraignment. Id..... Unlike the right-to-counsel situation discussed in Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] ... and other Fifth Amendment cases, the defendant's Sixth Amendment right to counsel is not dependent upon the defendant's request for such counsel.... Instead, the latter right is activated by the initial judicial adversary proceeding and applies to any statements made by defendant, even if unsolicited....
Despite the atypicality of the indictment here, which preceded arrest, the language of both Deputy and Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964) 2 make it clear that Lovett's Sixth Amendment right to counsel attached when he was indicted in Delaware. Thus that right attached before he made any incriminating statements to Officer Megee. 3
The question which necessarily follows is whether Lovett waived that right. Deputy, 500 A.2d at 590. Although Fifth Amendment as well as Sixth Amendment concerns are implicated in this case, because Lovett's statements were made while he was under arrest, in custody, and during his initial confrontation with police, Sixth Amendment waiver standards govern here. The State bears the burden of proving a waiver of both the Fifth Amendment right to counsel and the Sixth Amendment right to counsel. Id. at 591; Wainwright v. State, Del.Supr., 504 A.2d 1096, 1101 (1986). This Court has noted that waiver of a Sixth Amendment right to counsel is, if anything, a more difficult standard to satisfy than waiver of the Fifth Amendment right to counsel. Deputy, 500 A.2d at 591, n. 14...
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