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March 15, 1991


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


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.


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


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 ...

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