People v. Kleber

859 P.2d 1361, 17 Brief Times Rptr. 1684, 1993 Colo. LEXIS 886, 1993 WL 440016

• Court: Supreme Court of Colorado
• Decided: November 1, 1993
• Docket: 93SA30
• Status: Published

Opinions

The People bring this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1986 & 1993 Supp.), seeking reversal of the trial court’s ruling suppressing evidence obtained during the custodial interrogation of the defendant. The trial court’s decision to suppress the statements in question was based in part on its finding that the interviewing officers violated the defendant’s Fifth Amendment rights by failing to cease questioning upon the defendant’s request for an attorney. Because the record supports that finding, we affirm the ruling of the trial court.

I

On July 6, 1992, M.J. (the alleged victim) contacted the Arvada Police Department and indicated that she had information concerning James Kleber (the defendant), whose wife had been reported missing five days earlier. The alleged victim then met with Detective Scott Buckley and stated that one and one-half years earlier the defendant had attempted to sexually assault her. She described the alleged incident in detail, stating that after inviting her over to discuss his marital problems, the defendant had knocked her to the ground in front of his house, forcefully kissed her mouth, squeezed her throat and touched her breasts while she was unable to move. She later told her husband about the incident but did not report this to the police because her husband was a cousin of the defendant’s wife.

Based on this information, Detective Buckley prepared an affidavit for an arrest warrant which was issued on August 19, 1992. The defendant was arrested on August 20, 1992, in Salida, Colorado. The following day, Buckley and Sergeant Mike Roemer drove to Salida to pick up the defendant. During the drive back to the Arvada Police headquarters, no questions were asked or statements made, although the record indicates that Buckley and Roemer did discuss between themselves the investigation regarding the disappearance of the defendant’s wife. After their arrival in Arvada, the defendant was booked-in and taken to an interview room. At that time, the defendant had not yet been brought before a judge either in Sali-da or in Arvada to be advised of the nature of the charges against him. The defendant had only been told that he was being held regarding “an alleged sexual assault.”

The interview began with Detective Buckley advising the defendant of his Miranda ¹ rights from a written departmental form and asking the defendant if he was willing to answer some questions. The defendant then invoked his Miranda rights, requested an attorney, and remarked that he wished to discuss a prior polygraph test with the attorney. He apparently surmised that the investigation related to a past incident, approximately twenty years earlier, involving his daughter for which the defendant had taken a polygraph test. Detective Buckley was aware of the prior investigation to which the defendant referred. The trial court found that Buckley then explained to the defendant that the police were not investigating that particular incident and that he did not need to discuss it with an attorney because the statute of limitations had expired. Neither Buckley nor Roemer specified, however, the topic of the pending interrogation.

After Buckley again asked the defendant whether he wished to have an attorney present and whether he would answer some questions, the defendant finally agreed to waive his right to have an attorney present. Buckley then readvised the defendant of his Miranda rights, and the defendant signed a written form acknowledging that he understood the rights he was waiving. The interrogation then commenced and lasted approximately twenty-two minutes. During that time, the defendant stated that he had known the alleged victim for several years. He also admitted that he had kissed her once while she was at his home. The defendant denied, however, having ever seen the alleged victim express any anger and further denied having been slapped by her. After Buckley remarked to the defendant that he “should tell the truth for one time in his life,” the defendant told Buckley to throw him in jail and get him an attorney. The interrogation terminated at that point.

The defendant was charged with third degree sexual assault, under section 18-3-404, 8B C.R.S. (1986). He entered a plea of not guilty and moved to suppress the statements he had made during the custodial interrogation. At the suppression hearing, the defendant argued that the statements: (1) were obtained in violation of his rights under the Fifth Amendment to the United States Constitution and article II, section 18, of the Colorado Constitution because the police failed to honor his initial request for an attorney; (2) were the result of an invalid waiver of Miranda rights because he was never properly informed of the charges which would be the subject of the interrogation; and (3) were obtained in violation of Rule 5 of the Colorado Rules of Criminal Procedure. The trial court found that because the defendant “invoked his rights to have an attorney and was talked out of it by the detective,” the subsequent police interrogation violated the defendant’s rights under Miranda. The trial court also found that any purported waiver of such rights by the defendant was ineffective due to the failure by the police to adequately inform him of the nature of the charges against him.² As a result of its rulings, the trial court suppressed the defendant’s statements. The People appeal, arguing that the police committed no constitutional or rule violations.

II

In Miranda, the United States Supreme Court established the principle that once a suspect requests representation by counsel, all police-initiated interrogation must cease until the accused has consulted with an attorney. Miranda, 384 U.S. at 474, 86 S.Ct. at 1628. In Edwards v. Arizona, the Supreme Court further emphasized that

an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), quoted in People v. Benjamin, 732 P.2d 1167, 1169-70 (Colo.1987).

This “bright line” test in Edwards does not require the police to refrain entirely from questioning an accused, however, in situations where the accused’s request for an attorney is “ambiguous.” Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488 (1984); Benjamin, 732 P.2d at 1170-71. When reviewing a defendant’s statement for an alleged ambiguity, courts must give “a broad, rather than a narrow, interpretation to a defendant’s request for counsel.” Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986). In Benjamin, we held that when an accused makes an ambiguous statement that might reasonably be construed as a request for counsel, “interrogation must cease immediately except for very limited questions designed to clarify the ambiguous statement or to clarify the accused’s wishes regarding the presence of counsel.” Id. at 1171 (adopting the test set forth in Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979)).

A request for an attorney must be ambiguous from its inception, however, in order to permit such limited further questioning of the defendant by the police. In Smith, for example, the defendant initially responded to the suggestion by the police that he had a right to have a lawyer present at the interrogation by stating that “I’d like to do that.” 469 U.S. at 93, 105 S.Ct. at 491. The police continued to question Smith, however, as to whether or not he wished to have an attorney present, and Smith eventually stated that “Yeah and no, uh, I don’t know what’s what, really.” Id. The United States Supreme Court held that Smith’s initial request for counsel was clear and unambiguous, and the fact that his later statements might be construed as equivocal or ambiguous was not relevant to the question of whether Smith had exercised his right, under Miranda and Edwards, to end the interrogation:

Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease.... We hold only that, under the clear logical force of settled precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.

Id. at 98, 100, 105 S.Ct. at 494, 495 (emphasis in original).

The case before us is similar to, and controlled by, Smith. Here the trial court found that “when [the defendant] thought [the topic of the interrogation] was a specific incident, what he did do was invoke his Miranda rights and say T want an attorney’_” This finding is supported by the evidence.³ The record shows that the defendant’s request for an attorney was followed⁴ by a comment from the defendant revealing that he was under the impression that the interrogation would focus upon a prior alleged sexual assault involving the defendant and his daughter. At this point, the defendant’s request for an attorney was not ambiguous or equivocal. Benjamin, 732 P.2d at 1171. The fact that the police deliberately failed to disclose to the defendant the subject matter of the interrogation cannot transform his clear request for counsel into an ambiguous statement. An accused does not fail to exercise the rights established in Miranda and Edwards solely because he or she mistakenly, and in this case justifiedly, believes the pending interrogation will focus on a matter which the police only later explain will not be discussed.

Finally, even assuming, arguendo, that the defendant’s statement in fact was ambiguous, the subsequent statements by the interviewing officers fail the limited inquiry test. Benjamin, 732 P.2d at 1171. The record shows that after the defendant asked to speak with an attorney, the officers informed him that he would not need to consult one for the prior incident because the statute of limitations had expired. The officers then asked the defendant if he still wanted an attorney and whether he would answer some questions for them. The statement by the police as to the expiration of the statute of limitations does not qualify as one of those “very limited questions designed to clarify the ambiguous statement or to clarify the accused’s wishes regarding the presence of counsel.” Id. By telling the defendant that he need not worry about the prior incident, the police were merely assuaging the defendant’s concerns as to the possible scope of the discussion, in an effort to convince him that he would not need to have an attorney present. See Arizona v. Roberson, 486 U.S. 675, 683-84, 108 S.Ct. 2093, 2099, 100 L.Ed.2d 704 (“[T]he presumption raised by a suspect’s request for counsel — that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance — does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.... [A] suspect’s request for counsel should apply to any questions the police wish to pose_”). Such comments fall outside the permissible scope of inquiry once an accused has made an arguably ambiguous request for counsel.

Because we believe the defendant’s statements were properly suppressed due to the police officers’ failure to cease the interrogation after the defendant requested an attorney, we do not reach the other issues raised by the defendant. Accordingly, we affirm the trial court’s ruling suppressing the statements made by the defendant during the police interrogation.

ROYIRA, C.J., dissents, and VOLLACK, J., joins in the dissent.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . The trial court appears to have concluded that this failure by the police to inform the defendant of the specific nature of the “alleged sexual assault” for over twenty-four hours while the defendant was in police custody constituted a violation of Crim.P. 5.

3 . Detective Buckley was the only witness who testified at the suppression hearing. His testimony as to the exact wording of the defendant’s request for an attorney differs somewhat between direct and cross examination. Although the prosecutor indicated that the interview with the defendant was tape-recorded and that the People were willing to introduce the recording on redirect, the tape itself was never formally offered into evidence and is not in the record before us. The trial court is the finder of fact, and we defer to its findings when supported by the evidence.

4 . Although there was some dispute in the record as to whether the defendant's remark about the prior incident involving the polygraph test was tied to his initial request for an attorney, it is undisputed that the request for an attorney preceded the reference to the prior incident.