Phillips v. State, 984S367

• Decision Date: 02 October 1983
• Docket Number: No. 984S367,984S367
• Citation: 492 N.E.2d 10
• Parties: Joseph L. PHILLIPS, Appellant, v. STATE of Indiana, Appellee. . 88 25, 1986. Chokwe Lumumba, Detroit, Mich., Howard Grimm, Jr., Fort Wayne, for appellant. Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee. SHEPARD, Justice. This case presents an important question of first impression: the circumstances under which police may resume interrogation of a suspect who has invoked his right to remain silent. Appellant Joseph Phillips was charged initially with murder, Ind.Code Sec. 35-42-1-1(2) (Burns 1985) and burglary, a class A felony, Ind.Code Sec. 35-43-2-1 (Burns 1985). The jury returned verdicts of guilty for each of these charges. The judge then merged the two offenses and sentenced defendant to a term of fifty years for the murder conviction. Appellant raises three issues in this direct appeal: (1) Whether admission of an inculpatory statement taken from Phillips after he invoked his right to remain silent and then initiated further discussion violated his Miranda rights, (2) Whether the warrantless arrest of the accused in his home is justified when the police have obtained consent to enter; and (3) Whether the evidence is sufficient to sustain his conviction. These are the facts which tend to support the trial court's judgment. On
• Court: Indiana Supreme Court

Page 10

492 N.E.2d 10

Joseph L. PHILLIPS, Appellant, v. STATE of Indiana, Appellee.

No. 984S367.

Supreme Court of Indiana.

88 25, 1986.

Chokwe Lumumba, Detroit, Mich., Howard Grimm, Jr., Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

This case presents an important question of first impression: the circumstances under which police may resume interrogation of a suspect who has invoked his right to remain silent.

Appellant Joseph Phillips was charged initially with murder, Ind.Code Sec. 35-42-1-1(2) (Burns 1985) and burglary, a class A felony, Ind.Code Sec. 35-43-2-1 (Burns 1985). The jury returned verdicts of guilty for each of these charges. The judge then merged the two offenses and sentenced defendant to a term of fifty years for the murder conviction.

Appellant raises three issues in this direct appeal:

(1) Whether admission of an inculpatory statement taken from Phillips after he invoked his right to remain silent and then initiated further discussion violated his Miranda rights,

(2) Whether the warrantless arrest of the accused in his home is justified when the police have obtained consent to enter; and

(3) Whether the evidence is sufficient to sustain his conviction.

These are the facts which tend to support the trial court's judgment. On October 2, 1983, three men broke into the residence of Robert Smith, age 87, and ransacked it. Mr. Smith died from two gunshot wounds to his chest sustained during the robbery.

On October 13th, Lee Drew gave a statement to the police admitting his own participation and implicating appellant and Brice Littlejohn in the burglary and homicide of Smith. As a result of Drew's statement, police arrested Phillips on the same day. They read him his Miranda rights, but he declined to make a statement. Three days later Phillips told the police that he, Drew, and Littlejohn broke into Smith's house, but he denied shooting the victim.

One of Smith's neighbors saw appellant walking in the direction of Smith's house on October 2nd at 11 p.m., and she positively identified Phillips in court. In addition, an inmate who shared a cell with defendant in October also testified that Phillips admitted that he shot Smith two times because the deceased walked in on him while he was ransacking the home.

I. Admission of Phillips' Statement

On October 13, 1983 appellant was arrested by the police at his home. That same afternoon the police interrogated appellant after a full advisement and waiver of his Miranda rights. Appellant stated that he did not have any knowledge about the Smith homicide and then announced that he did not wish to discuss it any further. The police immediately ceased this interrogation and then booked defendant on the present charges.

Three days later defendant told the jail commander that he wanted to speak with either Officer Martin Eby or Officer David Becher about his case. Becher came to the police station. Since he did not have an advice of rights form with him at the time, Becher advised appellant orally that: he had the right to remain silent, that anything he said could be used against him in court, that he could have an attorney present during questioning, and that he could terminate the interview at any time. Becher did not inform appellant prior to this second interrogation that if he could not afford an attorney one would be appointed. Phillips stated that he understood the rights of which he was orally advised and that he remembered the constitutional rights which were read to him prior to the first interrogation.

At this second interrogation appellant first recited a story which the police did not believe. The police again told defendant that Lee Drew would testify at trial that Drew, appellant, and Littlejohn had committed this burglary and homicide. Phillips then told the police that while he was ransacking the house he was warned by someone that the owner was home. Phillips then heard two gunshots as he was fleeing from the residence. The police requested that appellant give them a formal written statement admitting his participation in the burglary and homicide of Smith. Phillips refused.

On October 20th, the police interrogated defendant a third time after giving him a full recitation of his constitutional rights and obtaining a signed waiver. Becher testified that he wanted to give Phillips the opportunity to tell the truth since they had received information that a witness could identify him as the person who was seen outside the Smith residence. Phillips made a short statement that the police did not have any evidence against him and that he would see them in court.

Appellant argues that the incriminating statement which he gave at the second interrogation was inadmissible because the police did not advise him prior to the interrogation that if he could not afford an attorney one would be appointed. However, since Phillips had already been advised of all his rights on the day of his arrest and chose to remain silent, the issue is whether the police resumed interrogation improperly.

Warning the accused that he has the right to remain silent is an "absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere." Miranda v. Arizona (1966), 384 U.S. 436, 468, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694, 720. The Supreme Court has prescribed the procedures which police must follow after the accused has been advised of his constitutional rights:

Once warnings have been given, the subsequent procedure is clear. 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 this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Miranda, 384 U.S. at 474, 86 S.Ct. at 1627-1628.

The circumstances under which an interrogation may be resumed was not addressed directly in Miranda. The Court did note that if the accused invoked his right to remain silent when his attorney was present that further questioning might be proper in the presence of his counsel. ¹ However, it also suggested that the presence of an attorney may not always be required as a condition to further questioning of the accused. Procedures differ depending upon which right is invoked. When an attorney is requested, interrogation must cease until an attorney is present; when a defendant indicates he wishes to remain silent, interrogation must cease. Miranda, 384 U.S. at 474, 86 S.Ct. at 1627-1628.

The Court later held that the admissibility of statements obtained from a custodial interrogation conducted subsequent to the accused's invocation of his right to remain silent is dependent upon whether his right to cut off questioning was scrupulously honored. ² Michigan v. Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313. The facts in Mosley are similar but not dispositive of the case at bar. In Mosley, the police advised the accused of his Miranda rights before questioning him about a robbery. The defendant stated that he did not want to answer any questions about the robbery and the interrogation was promptly ceased. Later that same day Mosley was again advised of his Miranda rights and then interrogated by another detective about an unrelated homicide. At this time the defendant made a statement implicating himself in the murder. The Court found that Mosley's right to terminate questioning was scrupulously honored. The Court relied on three facts from the record in reaching this conclusion:

(1) The first interrogation (robbery) was immediately terminated upon Mosley's invocation of his right to remain silent.

(2) The officer who conducted the first interrogation did not try to resume questioning or to pursuade Mosley to reconsider his position.

(3) Mosley was fully apprised of his constitutional rights before the second interrogation which focused on an unrelated homicide.

The U.S. Supreme Court has not dealt directly with the issue presented by Phillips. However, there are several cases from that Court and this one which examine the resumption of questioning when the accused has invoked his right to the assistance of counsel. Smith v. Illinois (1984), 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488; Solem v. Stumes (1984), 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579; Oregon v. Bradshaw (1983), 462 U.S. 1039; 103 S.Ct. 2830, 77 L.Ed.2d 405; Wyrick v. Fields (1982), 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214; Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378; Moore v. State (1984), Ind., 467 N.E.2d 710; Clark v. State (1984), Ind., 465 N.E.2d 1090; Romine v. State (1983), Ind., 455 N.E.2d 911. The language and logic of these opinions are helpful in analyzing resumption of interrogation after an accused has invoked his right to remain silent.

When an accused has invoked his right to have counsel present during the custodial interrogation, a valid waiver of that right is not established by showing that he responded to police-initiated interrogation after being again advised of his rights. Edwards, supra. ³ If the accused initiates a second dialogue with the police, then any volunteered statements are admissible at trial. Edwards, supra. However, the accused may not be subjected to further interrogation until counsel has been made available or the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, supra; Accord, Watkins v. Virginia, --- U.S. ----, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986) (Dissenting opinion to the denial of certiorari). This is a prophylactic rule designed to protect the accused in police custody from being badgered by the police officers. Bradshaw, supra.

The accused's initiation of a dialogue with the police does not suffice ex...