State v. Post
| Decision Date | 07 November 1989 |
| Docket Number | No. 11026,11026 |
| Citation | 109 N.M. 177,783 P.2d 487,1989 NMCA 90 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Timothy POST, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his convictions for commercial burglary, NMSA 1978, Sec. 30-16-3(B) (Repl.Pamp.1984), and contributing to the delinquency of a minor, NMSA 1978, Sec. 30-6-3 (Repl.Pamp.1984). A Cibola County jury acquitted him of two other charges, arson, NMSA 1978, Sec. 30-17-5(A) (Repl.Pamp.1984), and conspiracy to commit arson, NMSA 1978, Secs. 30-28-2 (Repl.Pamp.1984), 30-17-5(A). Defendant raises four issues, claiming trial court error in (1) failing to suppress a statement defendant gave the police after invoking his right to counsel; (2) admitting evidence of the extent and amount of damage caused by fire; (3) denying motion for mistrial based on claimed prosecutorial misconduct; and (4) denying motion for directed verdict based on insufficiency of the evidence.
We hold defendant's statements should have been suppressed. Because of acquittal on the arson charges, the evidentiary questions will not arise on retrial; therefore, we do not decide them. We hold the prosecutor's remarks during closing argument did not require a mistrial. Finally, we set aside the convictions of commercial burglary and contributing to the delinquency of a minor and remand for new trial on those counts without use of defendant's statements.
On or about January 28, 1988, Belen High School sustained extensive fire damage. Suspecting arson, the Belen police investigated. A "Crimestoppers" tip identified defendant's son, Raymond Post, as the arsonist. Detective Sanchez interviewed Raymond, who confessed. Raymond implicated his father in the confession.
On February 1, 1988, Sanchez arrested defendant and obtained a statement in which defendant admitted participating with his son in burning the school.
A. Invocation of Right to Counsel
Before interrogating defendant, Sanchez read defendant his "Miranda rights," Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), from a form. After the detective read the portion of the form that advised, "If you can not afford an attorney, one will be appointed for you at no cost to you," defendant said, "I will need an attorney." Sanchez continued reading the form, which advised defendant if he decided to answer the questions now, without an attorney, he had the right to stop answering at any time until he could talk to an attorney. He then asked defendant if he understood his constitutional rights. Defendant initialed each question, indicating he did understand. At Sanchez's request, he then read and signed a waiver of rights, indicating his willingness to make a statement without an attorney present.
At the motion to suppress, defendant's attorney questioned Officer Sanchez and received the following responses:
Q: Before you [obtained a statement from defendant], do you recall you telling him if he could not afford an attorney as part of his Miranda warnings that an attorney would be appointed for him?
Defendant first denied any involvement in the arson, but upon being informed by Sanchez that Raymond had been taken into custody and had given a statement implicating his father, defendant made a verbal statement. After the Miranda rights had been read to him a second time, defendant gave a written statement concerning his part in breaking into the school, his actions at the school with his son, and his use of codeine.
Defendant moved before trial to suppress the oral and written statements given the police. In denying the motion, the trial court relied on United States v. Obregon, 748 F.2d 1371 (10th Cir.1984). The court's order denying the motion to suppress also contained a handwritten notation following the citation to Obregon, reading: "From the totality of the circumstances the Defendant knowingly an [sic] intelligently waived his right to counsel."
Waiver of counsel must be more than knowing and intelligent; it must be voluntary. In Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), the United States Supreme Court held:
[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation ... until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. [Footnote omitted.]
No claim is made that defendant initiated any communication, exchange, or conversation. Thus, we believe Obregon is distinguishable. The defendant in that case, who had requested an attorney, also indicated that he waived his rights on a form that included the text for an advice of rights as well as a place for a waiver of rights. The court in Obregon, however, held that the defendant had waived his rights not only because he signed the form but also because he had initiated further communication with the police, believing that making a statement would be to his advantage. United States v. Obregon. In this case, we have no evidence that defendant initiated communication with the police, only that he signed the waiver form. The record indicates that Sanchez asked defendant to sign the place indicating a waiver of his rights. In addition, defendant made a verbal statement in response to the police informing him that his son had made a statement implicating him. Under these circumstances, we conclude the record shows a continuation of questioning, or its equivalent, after defendant claims he asserted his right to counsel.
The critical question is therefore whether defendant sufficiently invoked his right to counsel when he said he would need an attorney. The state contends that defendant's request was equivocal. Detective Sanchez testified that he understood defendant to mean he wanted an attorney for trial, not at that moment. Defendant testified otherwise, but since the trial court denied the motion, we assume it accepted Sanchez's version of what occurred.
Miranda states that a suspect invokes his right to counsel when he "indicates in any manner" he wishes to consult an attorney. 384 U.S. at 444-45, 86 S.Ct. at 1612-13. Edwards speaks of a right that has been "specifically invoked," 451 U.S. at 482, 101 S.Ct. at 1883-84, and Brewer v. Williams, 430 U.S. 387, 404-05, 97 S.Ct. 1232, 1242-43, 51 L.Ed.2d 424 (1977), refers to clear expressions of desire for counsel. In State v. Dominguez, 97 N.M. 592, 642 P.2d 195 (Ct.App.1982), this court, applying the rule in Miranda, observed that if a defendant indicates that he wishes to consult with an attorney before speaking, there can be no questioning.
In light of these decisions, we hold that defendant here was attempting to assert his right to counsel and did not waive his right to an attorney. The response, "I will need an attorney," leaves little doubt as to defendant's wishes. See Maglio v. Jago, 580 F.2d 202, 203, 205 (6th Cir.1978) ().
Assuming the state is correct that defendant's statement was equivocal, the cases it relies on do not support its position. The fifth and ninth circuits hold that, where a suspect makes an equivocal assertion of right to counsel, all questioning must cease, except the police may attempt to clarify the suspect's desire for counsel. See United States v. Fouche, 776 F.2d 1398, 1404-05 (9th Cir.1985); United States v. Cherry, 733 F.2d 1124, 1130-31 (5th Cir.1984); Thompson v. Wainwright, 601 F.2d 768, 772 (5th Cir.1979). Questions aimed at clarifying the desire for counsel must be strictly limited to that purpose, and if clarification reveals the suspect wants counsel, all interrogation must stop until counsel is provided. United States v. Fouche, 776 F.2d at 1405.
Even if defendant's response, "I will need an attorney," could be considered equivocal, the questions which followed did not meet the criteria of Fouche and Cherry. Detective Sanchez did not attempt to clarify defendant's desire for counsel. He continued to read the remaining rights, had defendant initial each, and then obtained a waiver of those rights from defendant. This is not a permissible method to either clarify an accused's equivocal request for counsel or to waive the accused's successfully invoked right to counsel. Thus, even under Fouche and Cherry, the statements given by defendant must be suppressed.
A heavy burden rests on the state to demonstrate an effective waiver of the fifth amendment right to counsel. Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628. The determination of the voluntariness of an alleged waiver of a suspect's right to counsel depends not merely upon a formal statement of waiver, but upon all the facts and circumstances of the particular case. State v. Greene, 92 N.M. 347, 588 P.2d 548 (1978). That burden was not satisfied here. The trial court erred in not suppressing defendant's statements.
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