Murphy v. State

766 S.W.2d 246, 1989 Tex. Crim. App. LEXIS 25, 1989 WL 11468

• Court: Court of Criminal Appeals of Texas
• Decided: February 15, 1989
• Docket: No. 1169-86
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. The jury also assessed punishment at life imprisonment after the State proved appellant had two pri- or felony convictions as alleged in the indictment. The Court of Appeals affirmed appellant’s conviction in an unpublished opinion. Murphy v. State, No. 01-85-0722-CR, delivered September 26, 1986) [1986 WL 10858]. Appellant then filed a petition for discretionary review with this Court which we granted to review the Court of Appeals’ holding that the trial court was justified in finding that police officers “scrupulously honored” appellant’s right to cut off questioning and therefore did not violate appellant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We will affirm.

The facts surrounding appellant’s arrest and the taking of his confession were established in a hearing on appellant’s motion to suppress his confession. The trial court overruled appellant’s motion to suppress. Appellant was arrested by Houston police officers on September 3,1984, on a warrant from Anderson County. Prior to appellant’s arrest, the Houston police department had received information through Crime Stoppers that implicated appellant and his brother in a robbery-murder committed in Harris County. Sargeant S.A. Cain of the Houston police department testified at the hearing that upon receiving this information he ran a name check on appellant and discovered that he was wanted for an offense committed in Palestine, which is in Anderson County. Cain subsequently contacted the Palestine police department and was told that appellant had been charged with capital murder in Palestine.

Acting upon a tip as to appellant’s whereabouts in Houston and knowing that appellant was wanted out of Palestine, Officer J.E. Foxworth picked up appellant “to speak to him about some information.” Appellant initially told Foxworth that his name was Rivers, but appellant was not carrying any identification. After appellant agreed to get in Foxworth’s patrol car to talk to him, he admitted to Foxworth that he was Donald Murphy, and Foxworth thereafter told him he was under arrest. Foxworth then took appellant to a police substation to verify that he was the same man that was wanted in Palestine. Upon verifying that, Foxworth called Sargeant Brian Foster in the Homicide Division, who advised Foxworth to bring appellant to the main police station. Foxworth did not recall reading appellant his Miranda rights.

Foster read appellant his Miranda rights when appellant arrived at the Houston police station. No charges, however, had been filed against appellant for the robbery-murder in Houston at the time of his arrest. Foster stated further that appellant did not request an attorney at that time and did not give him a statement. Appellant told Foster that “he had heard of [the robbery-murder in Houston] but he didn’t see how he could help himself by talking to [Foster].” Since appellant did not wish to discuss anything with the Houston police and the Houston police did not have sufficient evidence to file charges against appellant for the robbery-murder, appellant was released to the Palestine police, who transferred appellant to the Anderson County Jail the following day, September 4, 1984.

Subsequently, the Houston police obtained a statement from one of appellant’s co-defendants which implicated appellant in the offense in Houston. The Houston police did not have any further contact with appellant until September 19, 1984, when Cain, Sargeant A.T. Herman, and Officer M.L. Patterson went to Palestine to question appellant about the robbery-murder in Houston. The officers interviewed appellant in the Anderson County Jail at approximately 2:00 p.m. Prior to questioning appellant, Cain again read appellant his Miranda rights. Cain testified at the hearing that appellant told him “I know my rights” and appellant did not request the presence of an attorney. Cain testified that “[appellant] was asked if he had an attorney and he replied that they had appointed him an attorney in Anderson County, and we asked if he wanted his attorney when he talked to us and he stated no.” Appellant thereafter gave a statement implicating himself as a participant in the Houston offense. Appellant’s confession was admitted into evidence at trial over appellant’s objection.

In his ground for review, appellant contends “[t]he Court of Appeals incorrectly found no impropriety when police officers, aware that appellant had counsel, initiated a conversation with him two weeks after he had invoked his right to silence.” In its findings of fact and conclusions of law on voluntariness of appellant’s confession, the trial court found, inter alia, that on September 19, 1984, no attorney had been appointed to represent appellant on the charge of capital murder pending in Anderson County, although appellant told the police officers interviewing him that one had been appointed,¹ and that appellant did not at any time request an attorney.² Appellant acknowledges in his brief that there was no testimony at the hearing on his motion to suppress or at trial that he specifically invoked his right to counsel, only that he invoked his Miranda rights in general and declined to submit to questioning at the time of his arrest on September 3, 1984. The testimony of the Houston police officers clearly established that appellant did not wish to discuss anything with them at the time of his arrest.

Appellant states in his brief that the issue in this case does not involve the invocation of his Fifth Amendment right to counsel under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).³ Nor is the issue in this case whether appellant’s Sixth Amendment right to counsel was violated, because at the time of the questioning of appellant by the Houston police officers no judicial proceedings had been initiated against appellant in this cause. See Wilkerson v. State, 657 S.W.2d 784, 790 (Tex.Cr.App.1983).

The issue presented to us in this cause is the same as the one confronted by the Supreme Court in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In that case, the Supreme Court addressed the circumstances under which the prosecution is prohibited from using a defendant’s in-custody statement obtained by police who have renewed interrogation after the defendant has invoked his right to remain silent. The resolution of this issue turned on the Court’s interpretation of a single passage in the Miranda opinion, which stated:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Miranda, 384 U.S. at 473-474, 86 S.Ct. at 1627-1628. Although this passage states that “interrogation must cease”, the Miranda opinion did not indicate under what circumstances, if any, a resumption of questioning is permissible. The Supreme Court in Michigan v. Mosley, supra, clearly stated that this Miranda passage cannot be read to 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. The Supreme Court recognized that the critical safeguard in the passage was a person’s “right to cut off questioning” and concluded that the admissibility of in-custody statements taken after a defendant invokes his right to remain silent depends on whether that right was “scrupulously honored”. Michigan v. Mosley, 423 U.S. at 104, 96 S.Ct. at 326.

The threshold issue we must address is whether appellant exercised his right to remain silent at the time of his arrest on the Anderson County warrant in Houston. Foster testified at the suppression hearing that appellant, after being given his Miranda warnings, did not wish to discuss anything with him. As stated earlier, appellant told Foster that he had heard of the robbery-murder in Houston but “[appellant] didn’t see how he could help himself by talking to [Foster].” Appellant was thereafter released to the Palestine police department. We conclude that appellant’s statement to Foster was an invocation of his right to remain silent.

Having determined that appellant invoked his right to remain silent, we may now resolve appellant’s contention that the Court of Appeals erred in holding that that right was scrupulously honored. The Supreme Court in Michigan v. Mosley, supra, did not specify the length of time that police officers must wait before resumption of questioning, and thus a determination of whether a resumption of questioning is consistent with scrupulous observance of the right to cut off questioning depends upon the circumstances of each case. See Michigan v. Mosley, supra, (interrogation immediately ceased, reinitiated on different subject more than two hours later, after warnings were readministered, constitutes scrupulous honoring of right); United States v. Bosby, 675 F.2d 1174 (11th Cir.1982) (interrogation immediately ceased, reinitiated two weeks later, after warnings readministered; scrupulous honoring). Compare Christopher v. Florida, 824 F.2d 836 (11th Cir.1987) (interrogation did not cease in spite of defendant’s repeated invocation of right to silence; no scrupulous honoring); and United States v. Hernandez, 574 F.2d 1362 (5th Cir.1978) (no immediate cessation of questioning but repeated attempts at interrogation; no scrupulous honoring).

In this cause, the Court of Appeals concluded the trial court was justified in finding that the police officers “scrupulously honored” appellant’s right to cut off further questioning, citing Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986). Appellant asserts that Phillips, supra, should not adversely affect the outcome of his appeal because it is factually distinguishable from his case. We are not persuaded by this argument. The facts supporting our holding in Phillips, supra, that the defendant’s right to cut off questioning was scrupulously honored, are summarized in that opinion, where we stated:

Immediately after appellant indicated that he did not wish to discuss the matter with [the officer], he was taken away from the interrogation room, given lunch, and returned to his cell. Later that afternoon ..., [the officer] took appellant back to the interview room and repeated the Miranda warnings. Appellant did not indicate that he did not want to discuss the matter, but rather stated that he wanted guarantees before he would talk. [The officer] stated that he could make no guarantees and repeated the warning that anything appellant may say could be used against him. Thereafter, appellant gave his confession.

Phillips, supra at 891. In Phillips, supra, the defendant asked for “a little” time before answering further questions from detectives. Thereupon the questioning ceased and the defendant was given approximately two hours to think about whether he wanted to continue to talk to detectives.

After appellant’s arrest in the present cause, he was taken to the Homicide Division where he was administered his rights by Foster, who testified at the suppression hearing that appellant did not give him a statement at that time nor did appellant request an attorney. Appellant was not charged in connection with the offense in Houston, but a “hold” was placed on him for the Palestine police department. After appellant’s transfer to Anderson County on September 4, 1984, the Houston police did not talk to him until September 19, 1984, when Cain, Herman, and Patterson went to Palestine to talk to him about the robbery-murder in Houston.

Cain testified that he initiated the interview with appellant at the jail and gave appellant his Miranda warnings prior to speaking with him. As noted earlier, appellant told Cain “I know my rights,” and indicated to Cain that he understood his rights. Cain stated at the suppression hearing that appellant did not request an attorney, and decided to “give up those rights.” Cain then interviewed appellant as to the facts of the Houston offense only, secured appellant’s statement, and Patterson fingerprinted appellant. As previously stated, during his interview with appellant, Cain asked him if he had requested an attorney. Appellant told Cain that he had been appointed an attorney in Anderson County but that he did not want his attorney while talking to him.

We hold that on the facts of this case appellant’s right to remain silent and cut off questioning was scrupulously honored. Questioning of appellant ceased immediately upon his invocation of his right to remain silent. Appellant was then transferred to Anderson County, and Houston police made no attempt to reinterrogate appellant until 15 days later. Appellant was warned of his rights prior to any questioning. We find no impropriety on the part of the Houston police in resuming questioning of appellant after the passage of such a significant period of time⁴, and hold that appellant’s statement was admissible in evidence at trial.

Accordingly, the judgment of the Court of Appeals is affirmed.

1 . The mere mention of the word "lawyer" does not constitute a clear invocation of a defendant’s right to counsel. Russell v. State, 727 S.W.2d 573 (Tex.Cr.App.1987).

2 . Appellant does not challenge the trial court’s findings and conclusions, and concedes that there is no testimony that he requested counsel. Since there is a finding that appellant did not request counsel, and the finding is supported by the record, we do not address the issue raised in Edwards v. Arizona, infra, or analyze appellant’s contention under the recent Supreme Court case of Arizona v. Roberson, — U.S.-, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

3 .We note that an appellant may deliberately waive a ground for review. Hawkins v. State, 613 S.W.2d 720, 723 (Tex.Cr.App.1981).

4 . Judge Clinton’s dissent chides us for singling out this factor. We consider all of the facts in determining whether the "scrupulously honored” test is met, including the fact that newly discovered evidence in the form of a co-defendant's confession implicating defendant had come into the hands of the police, and the fact that defendant had been appointed an attorney for the Palestine case and was asked by the police if he wanted to first talk to him (as opposed to talking to some as yet unknown and unappointed attorney). Each case must be judged on the totality of its own facts.