Gregory K. Orme, Judge. Judith M. Billings, and Pamela T. Greenwood, Judges, concur.
The opinion of the court was delivered by: Orme
Defendant appeals his conviction for criminal homicide, murder in the second degree, a first degree felony in violation of Utah Code Ann. § 76-5-203 (1990). We reverse and remand for a new trial.
On November 24, 1986, at approximately 10:30 p.m., defendant entered a 7-Eleven store in Salt Lake County and told the clerks that his daughter had been kidnapped. He asked them to call the police, which they did.
Deputies from the Salt Lake County Sheriff's Office responded. Defendant informed them that his daughter had been abducted from his truck. He gave them a description of his daughter and a photograph. The officers investigated the alleged kidnapping until 4:00 a.m. At some point during the evening, defendant was informed the police did not believe his story. The officers asked defendant to come to headquarters the following morning for a polygraph examination. He agreed.
At approximately 10:30 a.m. on November 25, defendant arrived at police headquarters. He was met by the polygraph examiner, Sergeant Elliot, who had been briefed about the events which occurred on the prior evening. Defendant was escorted to a small interrogation room, hooked up to a polygraph machine, and instructed about how polygraph machines worked. Sgt. Elliot then explained the purpose for giving defendant the test. He said:
When we walk out of here we ought to be able to tell the detectives Carlos is truthful when he says the child was taken out of the truck, he had not prearranged with anyone to take the child. Uh, also, Carlos is not involved in the death of the child if the child is, in fact, dead. And, uh, those are the two things that we will accomplish today. *fn1
After explaining to defendant the purpose of the test, Sgt. Elliot gave defendant the Miranda warnings. He began by stating: "Because you are in the cop shop there is no doubt in your mind that this is the police station and, uh, because you are in taking a polygraph from a law enforcement agency I must advise you of your rights again." *fn2 After reading defendant each of his rights, the following exchange ensued:
Elliot: Okay, having these rights in mind do you wish to talk to me now.
Sampson: Well, uh, should I have a lawyer, I mean, well, I'm really not worried about anything, it is just that....
Elliot: Okay, if you are not worried about anything I would say that is fine, let's go ahead and proceed. Let's get this thing done and get it over with and see what we can do.
Sampson: I'm willing to get it over with.
Defendant then read and signed a form listing his Miranda rights and indicating his willingness to take the polygraph test.
During the polygraph examination, Sgt. Elliot asked defendant whether he arranged the disappearance or caused the death of his child and whether he knew where she was hidden. *fn3 He asked defendant this series of questions four times. To the question concerning where his daughter was hidden, defendant responded in the negative each time and each time the polygraph suggested a deceitful response. After the last set of questions, Sgt. Elliot informed defendant about the test results. He asked defendant why his response to the question concerning whether he knew where his daughter was hidden appeared to be false. Defendant said he thought maybe the child's mother had done something with her.
After concluding the examination, Sgt. Elliot and defendant went to find Salt Lake County Sheriff Pete Hayward. Sgt. Elliot told Sheriff Hayward about the test results. He told him that he believed defendant had been untruthful and informed him that defendant had been "Mirandized," but apparently did not acquaint the sheriff with the particulars of defendant's responses after his rights had been read to him.
Sheriff Hayward then returned with defendant to the polygraph room for further questioning. He did not give defendant the Miranda warnings. *fn4 He informed defendant that there were inconsistencies in his story and that he did not believe defendant was telling the truth. He then asked defendant whether he had injured his daughter. Ultimately, defendant stated his daughter was dead and that he could show the police where she was located.
Defendant accompanied Sheriff Hayward and another deputy to a dumpster in American Fork where his daughter's body was located. After retrieving the body, the officers placed defendant under arrest and returned him to Salt Lake City. When the officers again met with defendant, defendant was read his Miranda rights. He agreed to talk with the investigating officer, who thereafter questioned him concerning the circumstances surrounding his daughter's death.
Prior to trial, defense counsel filed a motion to suppress all statements made by defendant during and after the polygraph examination on November 25, 1986, and all evidence derived as a result of those statements. Counsel argued that the police officers had violated defendant's Miranda rights by continuing to question him ...