State v. Kiriluk

• Decision Date: 11 February 1999
• Docket Number: No. 971200-CA,971200-CA
• Citation: 362 Utah Adv.Rep. 19,975 P.2d 469
• Parties: 362 Utah Adv. Rep. 19, 1999 UT App 30 STATE of Utah, Plaintiff and Appellee, v. John Peter KIRILUK, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 469

975 P.2d 469

362 Utah Adv. Rep. 19, 1999 UT App 30

STATE of Utah, Plaintiff and Appellee, v. John Peter KIRILUK, Defendant and Appellant.

No. 971200-CA

Court of Appeals of Utah.

Feb. 11, 1999.

Linda M. Jones, Salt Lake City, for Appellant.

Jan Graham and Marian Decker, Salt Lake City, for Appellee.

Before Judges WILKINS, P.J., BILLINGS, and JACKSON.

AMENDED OPINION ¹

BILLINGS, Judge:

¶1 Defendant John Kiriluk appeals his conviction of criminal homicide, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1997). We affirm.

FACTS

¶2 "In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict. We recite the facts accordingly." State v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992) (citations omitted). However, we are mindful that we must determine if the evidence relied upon by the jury "is so compelling that we can conclude, beyond a reasonable doubt, that the jury would have reached the same verdict." State v. Dahlquist, 931 P.2d 862, 867 (Utah Ct.App.1997); see State v. Mitchell, 779 P.2d 1116, 1121 (Utah 1989) (A "reviewing court is to decide whether, considering all the evidence, there was a reasonable likelihood that the jury would have decided the case differently.") (citation omitted).

¶3 Defendant and the victim were involved in the formulation and sale of methamphetamine. The victim served a variety of functions for defendant, including that of courier between defendant and others involved in the drug trade. In his last assignment, defendant gave the victim a large quantity of precursor to deliver to a methamphetamine "cook," ² and told him to return the finished product. The finished methamphetamine was never returned and the victim was unable to produce the missing precursor. Defendant was upset with the victim for losing the precursor and concerned for his own well-being because defendant owed money to his suppliers. Defendant confronted the victim about the missing precursor, struck the victim in the face, and threatened the victim's life. Following this assault, defendant, the victim, and a number of other eventual codefendants left defendant's house in a car, ostensibly to search for the missing precursor. Defendant and the vehicle's occupants ended up in a remote area of Bluffdale, Utah. Defendant, the victim, and a third male occupant, Damon Mumford, who had met the victim only that day, exited the vehicle. Defendant took a knife from one of the female passengers, and the three men walked a short distance away. Approximately thirty minutes later, only defendant and Damon returned to the vehicle with a bloody knife and some of the victim's possessions. Defendant, Damon, and the others returned to defendant's apartment where defendant partially burned the victim's possessions, and directed two of the women to finish the job.

¶4 The victim's body was found on March 22, 1996. Because defendant was one of the last people seen with the victim, police visited his apartment on the night of March 25, 1996. Upon arrival, the police saw drug paraphernalia in plain view. While some officers remained at the apartment, defendant agreed to accompany other officers to the police station for questioning.

¶5 At the police station, officers interviewed defendant two separate times, and ¶6 Two hours later, officers again questioned defendant. In the second interview, the officers questioned defendant only about the homicide. Defendant did not invoke his right to remain silent in this interview and openly discussed his version of the incidents leading up to the homicide. Initially, defendant told the officers that the victim was taken away by some "Mexicans" and killed. Defendant later switched stories and claimed that Damon led the victim away and returned alone, stating: "It's done." Defendant was later charged with and convicted of criminal homicide and now appeals.

provided him with Miranda warnings at the outset of both interviews. In the first interview, the officers initially focused their questioning on the homicide. However, after receiving a phone call about drugs found in defendant's apartment, the focus changed and the police began to discuss the drugs. At this point, defendant unequivocally invoked his right to remain silent, but the police continued to briefly question him about the drugs. Around the same time, and after invoking his Miranda rights, defendant consented to a search of his apartment. Thereafter, the first interview ended.

ANALYSIS

I. Violation of Defendant's Miranda Rights

¶7 Defendant first argues that the police violated his Miranda rights when, after invoking his right to remain silent, he was questioned a second time the same night. We review this alleged constitutional violation under a correction of error standard. See State v. Gutierrez, 864 P.2d 894, 898 (Utah Ct.App.1993).

¶8 As a threshold matter, we disagree with defendant's contention that he invoked his right to counsel. Defendant initially waived his Miranda rights at the outset of the first interview. He asserts, however, that when the interview topic switched to drugs, he invoked his right to counsel and thus the officer was obligated to cease his questioning. Our supreme court has clearly articulated the standard for a postwaiver invocation of counsel:

[O]nce a suspect has clearly, knowingly, and intelligently waived his Miranda rights, [Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ], places the requirement of clarity with respect to postwaiver invocation of those rights on the suspect. As the majority in Davis describes it, the suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney."

State v. Leyva, 951 P.2d 738, 743 (Utah 1997) (quoting Davis, 512 U.S. at 459, 114 S.Ct. at 2355). Here, in the context of the colloquy between defendant and the interviewing officer, defendant fails the Davis test.

Q. Okay, Uh, back at the apartment there has been some narcotics found and some drugs found, okay? Also at the apartment, while they were there, people came up and were startin to make buys, right, right then and there while, while uh, my Sergeant and some other, uh, cops were there. Okay? Now this happened inside your apartment. You're going to be arrested for that, okay? Now, do, do you want any, make any statements in regard to that. Keep, keeping in mind everything about you do have the right to remain silent. You do have the right to have to have an attorney, things of that nature. (Det.Carr)

A: Are you arresting me? (Inaudible) (John Kiriluk)

....

Q: I'm not going to bullshit ya here. That's what the call was about, okay? The Sergeant said while they were there they've arrested four people there. Four people that have come up there, tried to make buys, someone came up with a bottle of pills, things of that nature, okay? But apparently there was some dope found actually at your apartment. Okay? Now that in and of itself is enough for possession. Bare minimal possession. There's not sayin that you're dealin, okay? But that's bare minimal possession. Okay? And that's, and that's what you'd be lookin at right now, so again, do you want to make A: I don't. (John Kiriluk)

any statements in that regard to anything that goes, went on in your apartment that has to do with the drugs that were found there? (Det.Carr)

(Emphasis added.) Defendant's argument that he invoked his right to counsel hinges on his response "I don't," when asked whether he wanted to make any statements regarding drugs found in his apartment. This statement is insufficient, in any light, to suggest to the interviewing officer that he should have ceased his questioning because defendant was invoking his right to counsel. Thus, we do not further address this argument.

¶9 In Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975), the United State Supreme Court held that its decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), did not create "a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." (Footnote omitted.) In Mosley, the defendant was arrested in connection with a series of robberies and was advised of his Miranda rights before a first interview concerning the robberies commenced. See Mosley, 423 U.S. at 97, 96 S.Ct. at 323. Mosley told the officers that he did not wish to answer any questions concerning the robberies and the officers immediately stopped their questioning. See id. Later that afternoon, Mosley was again given his Miranda rights and then interviewed by a different officer concerning an unrelated homicide, and confessed to participating in the homicide. See id. at 98, 96 S.Ct. at 324. Mosley later moved to suppress his statements concerning the homicide, arguing that the officers were barred from asking him any further questions after he had invoked his right to remain silent. See id.

¶10 In reversing the Michigan Court of Appeals' conclusion that Mosley's Miranda rights were violated, the Supreme Court noted there was no per se proscription against further questioning, and concluded that "the admissibility of statements obtained after the person in custody has decided to remain silent depends, under Miranda, on whether his 'right to cut off questioning' was 'scrupulously honored.' " Id. at 104, 96 S.Ct. at 326 (footnote omitted). The Court looked at a number of factors in concluding no Miranda violation occurred: that the questioning abruptly ended when Mosley invoked his right to remain silent; that two hours passed before a different officer interviewed Mosley about a different crime; and that Mosley was given his full Miranda rights at the outset of the...