State v. Gutierrez

• Decision Date: 28 October 1993
• Docket Number: No. 930190-CA,930190-CA
• Citation: 864 P.2d 894
• Parties: STATE of Utah, Plaintiff and Appellee, v. Lana Marie GUTIERREZ, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 894

864 P.2d 894

STATE of Utah, Plaintiff and Appellee, v. Lana Marie GUTIERREZ, Defendant and Appellant.

No. 930190-CA.

Court of Appeals of Utah.

Oct. 28, 1993.

Robert K. Heineman and Charles F. Loyd, Jr., Salt Lake City, for defendant and appellant.

Jan Graham and Todd A. Utzinger, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GREENWOOD and GARFF, ¹ JJ.

OPINION

GREENWOOD, Judge:

Defendant appeals her conviction for homicide, in violation of Utah Code Ann. § 76-5-203 (Supp.1993), claiming that the trial court erred in admitting her confession into evidence because the interrogating officers elicited the incriminating statements in violation of her federal and state constitutional right to remain silent. Having determined that defendant's incriminating statements followed an "arguably equivocal" invocation of this right, we reverse defendant's conviction and remand for a new trial. We reject the State's request that we remand for the limited purpose of receiving additional evidence on defendant's motion to suppress her confession.

BACKGROUND

On April 25, 1992, at 2:28 in the morning, defendant was apprehended in Farmington for driving under the influence of alcohol. When the police officers took her into custody, they impounded the white Cadillac she had been driving which, they later discovered, belonged to Joseph Shivers (the victim).

Later that morning, a neighbor of the victim telephoned the police to report his discovery of the victim's body on the bathroom floor of the victim's trailer home. Detectives Romero and Potter, who investigated the scene, discovered that the victim's automobile had been impounded and that defendant, who had been arrested while driving the car, remained in custody in the Davis County Jail.

At about 8:00 p.m. that evening, the two detectives went to the jail and interrogated defendant. After informing defendant of her Miranda rights, the detectives asked her if she understood those rights. Defendant answered, "Yes, I do." Detective Potter then asked her if she were willing to talk to them without consulting an attorney or having an attorney present. Defendant responded, "Yes. Everything's cool."

During the interrogation, defendant denied having an altercation with the victim and claimed that the bloodstains found on the clothes she was wearing when arrested resulted from a self-induced, accidental scrape, not from any contact with the victim. When Detective Potter challenged the truthfulness of this statement, defendant repeatedly denied that she was lying and then retorted, "I ain't got to listen to you, okay." Detective Potter answered, "No, you don't."

Very shortly afterwards, the following colloquy occurred:

Romero: Yeah, but you went in the house with him.

Defendant: Yeah, I went in the house with him. Does it mean that I did anything to him?

Romero: Well, yeah, it does.

Defendant: Oh, shit, no it doesn't. Whatever. You guys think what you want to think, okay?

Romero: Well ... we know what happened. If you want to tell us what happened and ... get this thing....

Defendant: You think what you want to think. I ain't got to say nothin'.

Potter: You don't have to.

Defendant: That's right. I ... and do you know what? You think what you want to think.

Romero: Well ... we know and ya know, you're not helping yourself is what we're sayin. If you want to help yourself ... great. Ya know.

Potter: Maybe ... maybe you were defending yourself. We don't know. That's why we're here to talk to ya. We know you got in a fight with [the victim]. But we don't know why. Ya know, maybe he went after you. Maybe you just had to protect yourself and that's how he got hurt. We don't know. You ... we're just here to ask you. You tell us what happened.

Romero: You know, maybe he was violent and pushing you around. We don't know what happened.

Defendant: Well, okay ... I did it. But, he started hittin' me and shit, so I hit him back.

Defendant claimed that the two above underlined remarks invoked her right to remain silent. Accordingly, she filed a motion to suppress the incriminating statements which followed. The trial court denied defendant's motion and permitted the State to introduce testimony concerning the interrogation at defendant's trial.

After the jury rendered a guilty verdict, the trial court sentenced defendant to an indeterminate term of five years to life, and ordered her to pay a fine and restitution. This appeal followed.

ANALYSIS

The Miranda Issue

Defendant seeks a new trial, claiming that the police officers questioning her failed to honor her invocation of the right to remain silent as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ² She argues that the officers either failed to cease questioning in response to two express invocations of her constitutional right to remain silent, or did not limit questioning to the clarification of her remarks after she equivocally invoked the right to remain silent. In developing this argument, she claims that: (1) Miranda protection applies because she uttered the incriminating statements during a custodial interrogation; ³ (2) she invoked the right to remain silent through language reasonably expected to be understood as invoking the privilege; (3) her statements required the officers to terminate their interrogation; and (4) this violation of her constitutional rights requires the reversal of her conviction and a new trial because, under the state constitution, the error should never be considered harmless. ⁴

Our review of the Miranda issue is non-deferential because this court stands in the same position as the trial court in reviewing the transcript of an interrogation. When a trial court bases its "ultimate conclusions concerning the waiver of defendant's Miranda rights, ... upon essentially undisputed facts, in particular the transcript of [an officer's] colloquy with defendant," its conclusions present questions of law which we review under a correction of error standard. State v. Sampson, 808 P.2d 1100, 1103 (Utah App.1990), cert. denied, 817 P.2d 327 (Utah 1991), cert. denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992).

In Miranda, the Supreme Court required law enforcement officers conducting custodial interrogations to give specific warnings prior to questioning suspects and to follow specific procedures after giving these warnings. Although the Miranda warning is not constitutionally mandated, the Supreme Court required it as a prophylactic measure to preserve a criminal suspect's ongoing constitutional privilege against compulsory self-incrimination. ⁵ Moran v. Burbine, 475 U.S. 412, 424-25, 106 S.Ct. 1135, 1142-43, 89 L.Ed.2d 410 (1986) (citations omitted). Furthermore, an effective initial waiver of the right to remain silent does not nullify a suspect's ability to subsequently invoke this right during the course of an interrogation. Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Therefore, if we find that, in spite of an effective initial waiver of her Miranda rights, defendant made, and the officers failed to honor, a subsequent request to terminate questioning, we must suppress her subsequent statements as "the product of compulsion, subtle or otherwise." Miranda, 384 U.S. at 474, 86 S.Ct. at 1628.

The trial court correctly noted that the right to remain silent and the right to be represented by counsel constitute separate elements of a criminal suspect's protection against coercive self-incrimination. The Supreme Court addressed the significance of this distinction in decisions following Miranda, which focused on a suspect's ability to waive a prior invocation of Miranda rights. In these cases, the Supreme Court, recognizing a distinction between the specific concerns that each Miranda right addressed, established separate requirements for resuming interrogation depending upon which right was waived. If a suspect invoked the right to the presence of counsel, a presumption arose that the suspect had indicated an unwillingness to proceed without an attorney present. Arizona v. Roberson, 486 U.S. 675, 683, 108 S.Ct. 2093, 2099, 100 L.Ed.2d 704 (1988). Questioning could not resume outside the presence of counsel unless a suspect not only knowingly and intelligently waived the right to the presence of counsel, but also personally initiated further discussion with the police. Id. at 680-81, 108 S.Ct. at 2097 (discussing Edwards v. Arizona, 451 U.S. 477, 485-86 & n. 9, 101 S.Ct. 1880, 1885 & n. 9, 68 L.Ed.2d 378 (1981)); Moran, 475 U.S. at 423 n. 1, 106 S.Ct. at 1141 n. 1. On the other hand, "a suspect's decision to cut off questioning, unlike his request for counsel, does not raise the presumption that he is unable to proceed without a lawyer's advice." Roberson, 486 U.S. at 683, 108 S.Ct. at 2099. Instead, the invocation of the right to remain silent requires termination of questioning to "prevent[ ] police from 'persisting in repeated efforts to wear down [the accused's] resistance and make him change his mind.' " Smith v. Illinois, 469 U.S. 91, 95 n. 2, 105 S.Ct. 490, 492 n. 2, 83 L.Ed.2d 488 (1984) (quoting Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327). However, even when a suspect invokes the right to remain silent, officers who initially honored that request by terminating the interrogation could resume questioning under some circumstances, including the passage of some significant period of time. Mosley, 423 U.S. at 104-06, 96 S.Ct. at 327 (noting that officers "fully respected" suspect's right to cut off questioning when second officer interrogated suspect about separate crime after waiting more than two hours to resume questioning and providing fresh set of warnings).

The Miranda decision, however, established identical standards for the invocation of either Miranda right. The Miranda Court recognized a suspect's desire to consult with an attorney expressed "in any manner and at any stage of the...