Sechrest v. State

• Decision Date: 27 August 1985
• Docket Number: No. 15320,15320
• Parties: Ricky David SECHREST, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 626

705 P.2d 626

101 Nev. 360

Ricky David SECHREST, Appellant, v. The STATE of Nevada, Respondent.

No. 15320.

Supreme Court of Nevada.

Aug. 27, 1985.

David G. Parraguirre, Public Defender, Jane G. McKenna, Deputy Public Defender, Reno, for appellant.

Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., Illyssa I. Fogel, Deputy Dist. Atty., Reno, for respondent.

OPINION

PER CURIAM:

In April of 1983, Doris Schindler hired Zella Weaver to babysit her ten-year old daughter, Maggie Schindler. In addition to caring for Maggie during weekday afternoons and evenings at the Schindler residence, Mrs. Weaver would pick Maggie up from the Meadowood Ice Arena when Maggie was through ice skating on Saturdays.

On May 14, 1983, a neighbor of the Schindlers' drove Maggie and her friend, Carly Villa, to Meadowood and dropped them off to skate. Later that afternoon Mrs. Weaver went to Meadowood to pick up Maggie and Carly but could not find them. The police were notified, and an investigation was begun.

On June 7, 1983, the bodies of Maggie and Carly were found in Logomarsino Canyon, a remote area east of Reno, by two young men who were out shooting. The bodies, which had been covered with loose dirt, were found about 50 yards apart. A pair of ice skates and skate guards with the name "Maggie S." on them were found near one of the gravesites.

Ricky David Sechrest is Zella Weaver's grandson and lived at her home. Sechrest had been seen outside the Schindler home several times while waiting to pick up his grandmother when she finished babysitting there. The record establishes that Maggie had been at the Weaver residence before and that Sechrest knew that his grandmother routinely picked Maggie up at Meadowood Mall on Saturdays.

On June 14, 1983, Sechrest gave an inculpatory statement to Officer Bogison and Detective Eubanks of the Reno Police Department while he was being questioned at the Sparks Police Department by Sparks police on an unrelated grand larceny charge. He admitted that he had picked up Maggie and Carly from the Meadowood Mall Ice Arena. He said that he asked Maggie if she wanted to go for a ride and that she had agreed. They drove out to Logomarsino Canyon. Sechrest claimed that they were walking around the hills rock hunting when Carly fell over backward and hit her head. Sechrest said he thought the girl was dead because when he checked her pulse, she did not have one. He said Maggie began to "freak out on him" and was "between hysterical and crying." Sechrest stated that he knew it was wrong to be up there with the girls to begin with, so when Maggie began to run he panicked, caught her and hit her over the back of the head with a rock. After hitting the girl three or four more times with the rock after she had fallen, Sechrest went to his car and got a shovel. He returned to where Carly was lying and thought she was still alive; so he hit her "once or twice" in the head with the edge of the shovel. He then buried the girls with loose dirt. In his statement Sechrest admitted that he performed an act of masturbation on Maggie's body, but, according to him, at this time the girl was already dead. ¹

A jury convicted Sechrest of two counts of first degree murder and two counts of first degree kidnapping. At the penalty phase, the jury set the penalty at death on each murder conviction. In addition the trial judge sentenced Sechrest to life without possibility of parole on each of the two kidnapping counts.

Constitutional Issues

Sechrest contends that the statement he made to the police, wherein he confessed to the killing, was erroneously admitted into evidence by the trial court in violation of his constitutional rights. We reject this contention.

Pursuant to the investigation of a grand larceny, Sechrest was approached on June 14, 1983 by officers from the Sparks Police Department. Advising Sechrest of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Detective Wright asked him if he wanted to talk about the grand larceny charge. Sechrest replied that he wanted an attorney. Officers asked no further questions but took Sechrest to the Sparks Police Department for booking. While waiting to be booked, Sechrest turned to Detective Wright and Sergeant Gonyo and said: "I like you two guys, I don't want an attorney, I will talk to you." The officers proceeded with the booking and afterward Sechrest was given a standard rights waiver form, which he read and signed in the presence of the officers. During questioning Sechrest stated that the Reno Police were investigating him as a possible suspect in a homicide. Sparks Police did not question Sechrest regarding the homicide but, rather, told him that they were only interested in the grand larceny charge.

After the interview was finished, Sergeant Gonyo left the room and then returned to inform Sechrest that Officer Bogison of the Reno Police Department was outside. Sergeant Gonyo asked Sechrest if he would like to talk to Officer Bogison, and Sechrest replied: "Yes, I like Mr. Bogison, he is the only one on my side, and understands me." ² Officer Bogison then approached Sechrest and said: "I understand you want to talk to me, is that right?" Sechrest replied: "Yes." Sechrest said that he had spoken with his attorney and had been advised to keep his mouth shut. In response, Bogison said: "Well, there is nothing we can do to alter that, ... do you want to talk to me?" Sechrest replied: "I will tell you what, I will make a deal--no, I won't make a deal. You ask some questions, and if I want to answer them, I will answer them, and if not, I won't." Bogison then said: "Does this mean you want to talk to us?" Sechrest replied: "Yes."

After the foregoing conversation Officer Bogison, Detective Eubanks and Sechrest entered an interrogation room. Sechrest requested that he be permitted to call his grandmother and also his attorney. After Sechrest spoke with his grandmother, Officer Bogison asked him: "Do you want to talk to your attorney?" Sechrest replied: "No, I want to get this off my chest." He then made the statement in which he confessed to the murders. ³

Generally, a request by the accused for an attorney is itself an invocation of fifth amendment rights, and police must immediately cease questioning, as the officers correctly did after arresting Sechrest on June 14. Neuschafer v. State, 101 Nev. ---, --- P.2d ---- (1985); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, during the booking procedure, Sechrest initiated a conversation with the officers in which he unequivocally eschewed his right to an attorney and agreed to be questioned. The United States Supreme Court has stated that "an accused, ... having expressed his desire to deal with the police only through 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, 101 S.Ct. at 1884. (Emphasis added). It is clear that Sechrest reinstituted a dialogue with the officers at the booking desk, and therefore, that dialogue falls under the Edwards rule.

Although Sechrest initiated the communication, we still must consider whether the waiver was knowingly and intelligently made. 451 U.S. at 486 n. 9, 101 S.Ct. at 1885 n. 9. After initiating the exchange, Sechrest read and signed a standard waiver form in the presence of the officers. The trial court found the waiver to have been voluntarily made. Considering Sechrest's background, level of comprehension, and dialogue with the authorities, it convincingly appears that the waiver was knowingly and intelligently made and therefore voluntary. There is nothing in the record which would cause us to disturb that determination, and we decline to do so.

After Sechrest agreed to talk to the officers, Sergeant Gonyo of the Sparks Police Department informed Sechrest that Officer Bogison of the Reno Police Department was outside. Sergeant Gonyo asked Sechrest if he would like to speak to Officer Bogison. Sechrest gave an unequivocal, affirmative answer. Officer Bogison then entered the room and asked Sechrest if he wished to speak with him. Again, Sechrest replied affirmatively. Clearly, Sechrest not only initiated the meeting with Officer Bogison, he repeatedly affirmed his desire to speak with Bogison upon Bogison's arrival at the Sparks Police Department. After this Sechrest made what is, at best, an ambiguous request for counsel. Sechrest said that he had spoken with his attorney and had been advised to "keep his mouth shut." Even an equivocal request for counsel by an accused requires that "law enforcement officials must cease the interrogation unless they ask the suspect further questions to clarify whether the suspect wants to consult with an attorney before continuing with the interrogation." United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir.1984) (citing Nash v. Estelle, 597 F.2d 513, 517 (5th Cir.1979 (en banc)).

Officer Bogison's response to Sechrest's comment was in the form of a request to clarify. As demonstrated by the above-quoted colloquy between Sechrest and Bogison, Sechrest invited the officers to question him. In a further attempt to clarify Sechrest's intent, Officer Bogison then inquired: "Does this mean you want to talk to us?" Sechrest replied, "Yes." This was adequate clarification of Sechrest's unimpaired willingness to talk to officers in the absence of counsel.

Recently, the United States Supreme Court in Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1985), addressed a case which presented similar facts. The accused in that case was advised by the police that he had a right to consult with an attorney and to have that attorney present during questioning. The accused responded: "Uh, yeah. I'd like to do that." 105 S.Ct. at 491....