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03/15/91 STATE UTAH v. CARLOS R. SAMPSON

COURT OF APPEALS OF UTAH


March 15, 1991

STATE OF UTAH, PLAINTIFF AND APPELLEE
v.
CARLOS R. SAMPSON, DEFENDANT AND APPELLANT

Original Opinion of February 12, 1991, Reported at 154 Utah Adv. Rep. 23, 806 P.2d 233.

Gregory K. Orme, Judge. Judith M. Billings, Judge, Pamela T. Greenwood, Judge, concur.

The opinion of the court was delivered by: Orme

OPINION ON REHEARING

This difficult case is again before the court on the state's petition for rehearing. Our prior opinion appears at 143 Utah Adv. Rep. 12 (Utah Ct. App. 1990) and should be consulted for an understanding of the pertinent facts and our Conclusions that defendant was under custodial interrogation when initially given Miranda warnings and that he equivocally invoked his right to counsel.

"NEW" MATTER

In its first brief and oral argument before this court, the state, as to the range of Miranda issues, made a deliberate tactical decision to rely solely on the theory that defendant was not subjected to "custodial interrogation" at the time of the polygraph examination, 143 Utah Adv. Rep at 16, an issue which has now been resolved in defendant's favor. See id. In our initial opinion we regarded this approach by the state as "stopping short of conceding" defendant's arguments concerning his equivocal request for counsel. Id. In its petition for rehearing, the state now argues for the first time that defendant's response to subsequent Miranda warnings *fn1 adequately served to clarify defendant's equivocal request for counsel or, perhaps more accurately, obviated any need to clarify the request.

While the state's decision not to develop this issue at trial is understandable in light of the state's success there on the argument that defendant had not even equivocally invoked his right to counsel when first given Miranda warnings, see id. at 16, the state should have raised the argument in initial briefing on appeal if it believed this fall-back position had merit. Given the posture of the trial court proceedings, this would not have run afoul of our proscription against raising arguments for the first time on appeal. But in such a situation, consistent with our standing aversion to considering for the first time at some later stage issues that could have been raised at an earlier stage, we ordinarily will not consider arguments presented for the first time on petition for rehearing, and are especially loathe to revisit a decision once rendered when the party seeking reconsideration intentionally did not present us with particular arguments in more timely fashion. See State v. Marshall, 791 P.2d 880, 885-87 (Utah Ct. App.), cert. denied, No. 900238 (Utah, Oct. 23, 1990).

However, we are not unsympathetic to the sheer volume and complexity of issues presented in this case, some ten having been raised by appellant, even though we found it necessary to reach only two in our initial opinion. See Sampson, 143 Utah Adv. Rep. at 14. Even without addressing the issues of whether, assuming custodial interrogation, defendant equivocally invoked his right to counsel and, if he did, whether the subsequent warnings cured the problem, the state's initial brief ran well over our page limit for briefs.

Considering the state's burden when confronted with multiple issues of the magnitude presented here, in conjunction with the significance of the waiver issue, and in light of helpful authority from the United States Supreme Court which was not available at the time of initial argument, we grant the state's petition for rehearing and proceed to treat its claim that the subsequent Miranda warnings and defendant's response thereto served to clarify his prior equivocal request for counsel or at least rendered it inconsequential as to the incriminating statements he made after getting new Miranda warnings. *fn2

SUBSEQUENT MIRANDA WARNINGS AS CLARIFYING EQUIVOCAL REQUEST

The state concedes for purposes of our further review that Sergeant Elliot erred in failing to follow firmly established precedent by not clarifying defendant's equivocal reference to counsel when defendant was first given the Miranda warnings. However, the state argues that a subsequent set of warnings, subsequent waiver by defendant, and information gleaned from the subsequent interrogation purged the taint of illegality introduced by the earlier disregard of defendant's equivocal request for counsel. The state calls our attention to Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), and claims we improperly relied on Edwards v. Arizona, 451 U.S 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). See Sampson, 143 Utah Adv. Rep. at 20 n. 14. The state focuses particularly on an ambiguous footnote in Edwards. See 451 U.S. at 486 n.9.

In Elstad, the United States Supreme Court held that a defendant's subsequent statement, given after an initial statement made without the benefit of Miranda warnings, may be admissible when Miranda warnings preceded the subsequent statement and there were no improper or coercive tactics employed by police in connection with the initial statement. Elstad, 470 U.S. at 314. The Court's rationale was that Miranda's protective measures, not the Fifth Amendment itself, were violated in such a case, making suppression of the later statements unnecessary. Elstad, 470 U.S. at 308.

On the other hand, in Edwards the Court emphasized that, unless an accused initiates the encounter, police cannot re-administer Miranda warnings and renew interrogation once a defendant has "clearly asserted" his or her right to counsel on an earlier occasion when Miranda warnings were actually given. Edwards, 451 U.S. at 484-85.

The state invites us to focus total attention on the "clearly asserted" language in Edwards, and hold that Edwards is accordingly inapplicable. The state would have us instead employ the Elstad rationale, because defendant did not clearly assert his right to counsel in this case, and determine whether the Fifth Amendment itself was violated. In essence, the state asserts we must find that defendant effectively waived his right to counsel when he was given new Miranda warnings and said nothing about counsel since the failure to clarify the equivocal request for counsel was "only" a violation of the Miranda doctrine, not a violation of the Fifth Amendment.

We recognize that waiver of constitutional rights is "possible... when the request for counsel is equivocal." Edwards, 451 U.S. at 486 n.9. But we are hard-pressed to see how an equivocal request for counsel can be meaningfully waived in advance of its having ever been clarified.

"The merit of the Edwards decision lies in the clarity of its command and the certainty of its application." Minnick v. Mississippi, 112 L. Ed. 2d 489, 111 S.Ct. 486, 490 (1990). A defendant who requests counsel "is not subject to further interrogation by the until counsel has been made available to him...." Edwards, 451 U.S. at 485. The Edwards decision leaves no room for ambiguity or uncertainty in the context of a clear invocation of the right to counsel. The singular event which may occur upon a defendant's request for counsel is for the defendant to consult with counsel. *fn3 Neither the passage of time, however great, nor the administration of additional Miranda warnings will allow officers to begin interrogation anew unless the suspect has been given the chance to consult with an attorney.

Obviously, the instant case does not fit squarely into either the Elstad or the Edwards framework. Unlike in Elstad, Miranda warnings were given to Sampson at the outset; unlike in Edwards, Sampson's request for counsel was not unequivocal. But we think the equivocal request for counsel situation is conceptually and practically more analogous to a clear request for counsel, as in Edwards and Minnick, than it is to a wholly unwarned statement as in Elstad. By analogy to the point made in the preceding paragraph regarding a clear request for counsel, it would appear that the singular event which may occur upon a defendant's equivocal reference to counsel is for defendant's "request" to be clarified. See Sampson, 143 Utah Adv. Rep. at 20 n.17 ("Once defendant made an equivocal reference to counsel... Sgt. Elliot could properly do only one thing -- seek clarification."). Neither the passage of time, however great, nor the administration of additional Miranda warnings will allow officers to reconvene interrogation absent clarification. If a signed waiver executed immediately after the equivocal request for counsel will not be taken as adequate clarification, see Sampson, 143 Utah Adv. Rep. at 20 n. 17, there is no reason why a waiver later in time should be recognized as such. Simply put, we believe that an equivocal request for counsel must be treated by the police and analyzed by the courts as though it were an unambiguous request for counsel -- until such time as it has been properly clarified and shown to be otherwise. *fn4

VIOLATION OF MIRANDA VS. VIOLATION OF FIFTH AMENDMENT

The state urges that the subsequent confession and derivative evidence were properly admitted under Elstad, claiming the failure to clarify defendant's equivocal request for counsel, although a violation of Miranda, was not violative of the Fifth Amendment itself. In advancing its Elstad argument, the state principally relies on Martin v. Wainwright, 770 F.2d 918 (11th Cir. 1985), cert. denied, 479 U.S. 909, 107 S. Ct. 307, 93 L. Ed. 2d 281 (1986). *fn5 In Martin, the suspect was given his Miranda warnings. In the course of interrogation, he asked: "Can't we wait until tomorrow?" Martin, 770 F.2d at 922-23. The Eleventh Circuit held this question was an equivocal request to terminate questioning and to invoke the right to remain silent, at least temporarily. It is notable that the court did not find the question to be an equivocal request for counsel, although it determined that an equivocal request to terminate questioning should be treated analogously to an equivocal request for counsel. Martin, 770 F.2d at 924.

The court held that the defendant's first confession, given subsequent to his equivocal request to remain silent which was not honored, was inadmissible as violative of Miranda. Martin, 770 F.2d at 924. The court stated that the failure to terminate questioning pending clarification, like the failure to give Miranda warnings in the Elstad context, violates the technical requirements of the Miranda rule although it does not violate the Fifth Amendment. Id. at 928-29. But because the first confession was not coerced, the court upheld admission of a second confession, given several days later and on the heels of renewed Miranda warnings, and after the defendant had consulted with counsel. Id. at 929.

The state asks us to treat the failure to clarify defendant's equivocal request for counsel in this case in similar fashion to Martin and to determine that it was merely a technical violation of the Miranda rule, and therefore does not bar introduction of defendant's subsequent confession made after new Miranda warnings were given. In urging this analogy, the state slights the continued vitality and invigoration given Edwards v. Arizona in subsequent Supreme Court decisions, including the recent decisions in Minnick v. Mississippi, 112 L. Ed. 2d 489, 111 S.Ct. 486 (1990) and Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988). Moreover, such an analysis is inapposite given our determination that an equivocal reference to counsel should be, until properly clarified, treated on equal booting with an unambiguous request to speak to an attorney. *fn6

A rigid insistence on clarification of the equivocal request for counsel if interrogation is to continue requires just that -- clarification. State v. Griffin, 754 P.2d 965, 969 (Utah Ct. App. 1988). An equivocal request is simply not clarified by being ignored by the police. Clarification necessarily implies that the equivocal request must be acknowledged by the interrogator. The interrogator must ask something like: "Your response suggests that you may wish to consult with an attorney before answering any of my questions. Do you wish to speak with an attorney or do you wish to answer my questions now?" Sampson, 143 Utah Adv. Rep. at 17.

For all practical purposes, as we have held above, until such time as the equivocal reference to counsel is clarified as not being an actual request for counsel, it must be treated the same as an express and unambiguous request for counsel. Cf. Griffin, 754 P.2d at 969 ("When an accused makes an arguably equivocal request for counsel during custodial interrogation, further questioning must be limited to clarifying the request.") The question then becomes whether the Constitution, or only Miranda, is violated if police disregard an invocation of the right to counsel and obtain a confession.

The answer is clear. Edwards and its progeny teach that once the right to counsel has been invoked "subsequent incriminating statements made without [the defendant's] attorney present the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution." *fn7 Oregon v. Bradshaw, 462 U.S. 1039, 1043, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983) (emphasis added); See Shea v. Louisiana, 470 U.S. 51, 52, 105 S. Ct. 1065, 84 L. Ed. 2d 38 (1985) (interrogation subsequent to a request for counsel violates Fifth and Fourteenth Amendments). See also Minnick, 111 S.Ct. at 489 (valid waiver cannot be established by showing that defendant responded to further questions).

In Roberson, the Court stated: "Surely there is nothing ambiguous about the requirement that after a person in custody has expressed his desire counsel, he 'is not subject to further interrogation... until counsel has been made available to him.... '" 486 U.S. at 685-86 (quoting Edwards, 451 U.S. at 484-85). Given our view that an equivocal request must be treated like a clear request pending clarification, failure to clarify an equivocal request, and interrogation conducted after that request, clearly do not fall within the rubric of a "mere technical violation" as suggested by the state.

The United States Supreme Court has demonstrated no criticism or ambivalence in holding violations of the right to counsel during interrogation to be constitutional in nature. See Minnick, 111 S.Ct. at 491 ("Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present.... "); Roberson, 486 U.S. at 683 (emphasizing distinction between exercise of right to terminate interrogation and remain silent and right to counsel).

We therefore decline to adopt a rule which would relegate failure to clarify an equivocal request for counsel to the status of "mere" Miranda violation for Elstad purposes. *fn8

Conclusion

The subsequent Miranda warnings given to defendant did not serve to clarify his prior equivocal request for counsel or somehow make that request go away. The violation was constitutional in magnitude. Accordingly, testimonial and physical evidence derived from all ensuing interrogation must be suppressed.

Having reheard and reconsidered the matter, our initial opinion stands supplemented herein.


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