People v. Kutlak

• Decision Date: 11 January 2016
• Citation: People v. Kutlak, 364 P.3d 199 (Colo. 2016)
• Docket Number: 13SC499
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Levent Ray KUTLAK, Respondent.
• Court: Colorado Supreme Court

364 P.3d 199

The PEOPLE of the State of Colorado, Petitioner,

v.Levent Ray KUTLAK, Respondent.

Supreme Court Case No. 13SC499

Supreme Court of Colorado.

January 11, 2016

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado.

Attorneys for Respondent: Douglas K. Wilson, Public Defender, Adam Mueller, Deputy Public Defender, Denver, Colorado.

En Banc

JUSTICE MÁRQUEZdelivered the Opinion of the Court.

¶ 1 Westminster police arrested Levent Ray Kutlak after he had a physical altercation with members of his wife's family.Detective Russ Johnson interviewed Kutlak at the police station.After he was read his Miranda rights, Kutlak stated that he had a personal lawyer and asked, "[C]an we get him down here now, or ...?"Detective Johnson responded that "it may be difficult" to get in touch with the attorney and that "[i]t may be something we have to do later.It's entirely up to you."Moments later, Kutlak stated that he was going to "take a dice roll" and talk with the detective.Kutlak signed a Miranda waiver and proceeded to make incriminating statements regarding the incident.

Kutlak later moved to suppress the statements he made in the interview with Detective Johnson.The trial court denied Kutlak's motion and a jury subsequently convicted him of child abuse, first degree criminal trespass, and two counts of third degree assault.The court of appeals reversed the judgment of conviction and remanded for a new trial, concluding that the trial court erred in denying Kutlak's motion to suppress his statements.The court reasoned that Kutlak unambiguously invoked his right to counsel during the interview and that, because the initial interview never stopped, Kutlak could not have reinitiated further communication with Detective Johnson.The court declined to reach Kutlak's remaining contentions on appeal.

¶ 3We granted the People's petition for writ of certiorari and now reverse the court of appeals.We first clarify that, in determining whether a suspect in custody has made an unambiguous request for counsel, the proper standard under Davis v. United States,512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362(1994), is whether "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."Applying this standard, we hold, based on our independent review of the video-recorded interrogation, that Kutlak did not unambiguously and unequivocally invoke his right to counsel.Because Kutlak did not actually invoke his right to counsel, and because he otherwise validly waived his Miranda rights before making incriminating statements to the detective, his statements should not have been suppressed.Accordingly, we reverse the judgment of the court of appeals and remand with instructions to address Kutlak's remaining contentions on appeal.

I.Facts and Procedural History

¶ 4 At 2:43 a.m. on May 22, 2008, Westminster police were dispatched on a report of a stabbing that took place during an altercation between Kutlak and his wife's family.The police arrested Kutlak and brought him to the Westminster Police Department.Detective Johnson contacted Kutlak at the station around 8:30 a.m. and conducted an interrogation.The interrogation lasted approximately an hour and was both audio- and video-recorded.¹It is undisputed that Detective Johnson properly advised Kutlak of his rights pursuant to Miranda v. Arizona,384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), including the right to have counsel present during the custodial interrogation.Immediately after the Miranda advisement, the following exchange occurred:

Johnson: Do you understand your rights as I have explained them to you?

Kutlak: Yes.

Johnson: Okay.Do you have any questions about them?

Kutlak: Uh ... if I, I have—

Johnson: Just about what your rights are.Do you have any questions about—

Kutlak: Yeah, I do, I do have a lawyer.

Johnson: Okay.

Kutlak: A personal lawyer.

Johnson: Okay.

Kutlak: He's on retainer.

Johnson: Okay.

Kutlak: Um [sigh] ... I mean ... like ... can we get him down here now, or ...?

Johnson: It may be difficult.I mean, it's, it's difficult to get in touch with him.It may be something we have to do later.It's entirely up to you.

Kutlak: Is there any way of a long shot, that, I mean ... we can work this out, and I can go home today or something?

Johnson: You know, I can't answer that question for you right now.I don't know the answer to that question right now.But what I need to know is, if you, if you do wanna—

Kutlak: I mean, I'm gonna take a dice roll, I'm gonna take a dice roll and I'm gonna talk to you guys.I mean, I'm not going to lie to you.I'm not going to do anything like that.I just....

Johnson: Okay.

Kutlak: I mean—

Johnson: Well I need you to be one-hundred percent certain and one-hundred percent comfortable with doing that.It's—

Kutlak: Yeah, definitely.If I stop feeling comfortable, I'll ask to stop.

Johnson: Okay, you certainly can at any time stop this interview if you wish to.Um, so you do understand your rights?

Kutlak: Yes sir.

Johnson: And with those rights in mind you're willing to answer questions with me at this time?

Kutlak: Yes sir.

Kutlak thereafter signed a Miranda waiver form and made incriminating statements about the incident.

¶ 5 Kutlak later moved to suppress the statements he made to Detective Johnson.At the hearing on Kutlak's motion, the prosecution argued that Kutlak's statements were "not an unambiguous request for counsel," but rather represented a "strategic decision" by Kutlak to secure his release from jail.Tr. Hr'g 39:7–8, Dec. 12, 2008; see also id.at 40:3–6.

¶ 6The trial court denied Kutlak's motion to suppress.It observed that Kutlak's invocation of his right to counsel"was, to some extent, ambiguous at that point in time," noting that Kutlak "never said he wanted a lawyer prior to questioning" and "never clearly iterated that he did not want to speak to ... the officer without the presence of counsel."Id.at 44:2–9.The court nevertheless concluded that Kutlak's statements were sufficient to invoke his right to counsel prior to questioning.However, the court found that Detective Johnson did not interrogate Kutlak after this invocation; rather, Kutlak reinitiated communication with Detective Johnson and waived his right to counsel.The trial court concluded that Kutlak's constitutional rights were not violated and thus declined to suppress the statements.

¶ 7The court of appeals reversed.People v. Kutlak,No. 09CA1627, 2013 WL 2285855(Colo.App.May 23, 2013).Kutlak argued to the court of appeals that the People had conceded that Kutlak's statements amounted to an unambiguous request for counsel.In response to questioning during oral arguments, the People did not disagree that Kutlak's statements were an invocation of his right to counsel.Nevertheless, the court of appeals did not rely on the People's apparent concession, but rather conducted its own independent analysis.It first concluded that Kutlak's statement that he had a lawyer followed by his question, "Um [sigh] ... I mean ... like ... can we get him down here now, or ...?" was an unambiguous request for counsel.Unlike the trial court, however, the court of appeals held that, because the interrogation never stopped after Kutlak's mention of counsel, Kutlak could not have "reinitiated" further communication with Detective Johnson.

¶ 8We granted the People's petition for writ of certiorari² and now reverse.

II.Analysis

¶ 9 Under Edwards v. Arizona,451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378(1981), a suspect in custody who unambiguously invokes his right to counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless he validly waives his earlier request for counsel.Smith v. Illinois,469 U.S. 91, 94–95, 105 S.Ct. 490, 83 L.Ed.2d 488(1984).The "rigid prophylactic rule" of Edwards embodies two distinct inquiries: first, whether the accused actually invoked his right to counsel; and second, if so, whether he initiated further discussions with the police and knowingly and intelligently waived the right he previously invoked.Id. at 95, 105 S.Ct. 490.

¶ 10The People have taken inconsistent positions in this case on whether Kutlak's statements amounted to an unambiguous request for counsel.The record reveals that at the suppression hearing, the prosecution challenged Kutlak's statements as ambiguous.However, when asked by the court of appeals, "Do you disagree that this was an invocation?"counsel for the People responded, "No, I don't."Likewise, the People's initial briefing to this court focused on whether Kutlak reinitiated discussions with Detective Johnson, apparently conceding that Kutlak's statements amounted to an unambiguous request for counsel.Yet in response to questioning from this court during oral argument, the People took a different position and contended that Kutlak's statements were arguably ambiguous, but acknowledged that the issue had not been briefed.

¶ 11We generally have discretion to affirm a trial court's denial of a motion to suppress on different grounds than those relied upon by the trial court.People v. Aarness,150 P.3d 1271, 1277(Colo.2006).Moreover, the United States Supreme Court has made clear that the Edwards analysis requires courts to first determine whether the suspect actually invoked his right to counsel, Smith,469 U.S. at 95, 105 S.Ct. 490, and both the trial court and the court of appeals directly addressed this issue.Accordingly, following oral arguments, we requested supplemental briefing from the parties on the issue of ambiguity under the standard articulated by the Supreme Court:

Whether, under Davis v. United States,512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362(1994), the defendant's references to counsel were sufficiently unambiguous and unequivocal to invoke the Edwards v. Arizona prohibition on

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