Wedgeworth v. State

288 S.W.3d 234, 374 Ark. 373, 2008 Ark. LEXIS 527

• Court: Supreme Court of Arkansas
• Decided: October 2, 2008
• Docket: CR 07-1042
• Status: Published

Opinions

Jim Gunter, Justice.

This appeal arises from the conviction and sentence of Appellant James Wedgeworth in Union County Circuit Court for the capital murder of Megan Harbison. Appellant was convicted by a jury of capital murder, a violation of Arkansas Code Annotated section 5-10-101 (Repl. 2006) and a class Y felony, and was sentenced to life imprisonment without the possibility of parole. On appeal, he argues that his taped custodial statement was obtained in violation of his Fifth Amendment right to counsel and that the circuit court erred in denying his motion to suppress and in allowing that evidence to be admitted at trial. We reverse and remand.

On July 16, 2005, Megan Harbison was murdered in her apartment in El Dorado. Appellant and the victim were in a relationship for more than one year and, according to Appellant, were supposed to marry when her divorce was final. However, after the victim’s divorce became final, she ended her relationship with Appellant. On the night of the murder, he told his mother about the relationship and that the victim had ended it. He left the house, went to the victim’s apartment, and shot and killed Megan Harbison.

The El Dorado Police Department was advised that A.F., the victim’s eleven-year-old daughter, called 911 and told dispatchers that her mother was covered in blood. Upon arrival, police found A.F. and another juvenile crying and asking for help. Lieutenant Kevin Holt summoned emergency personnel to the residence. The victim’s father advised police that his daughter had broken off her relationship with Appellant, and since that time, Appellant had been harassing her and making threats toward her.

Union County police officers arrested Appellant at his parent’s residence in Smackover and transported him to the El Dorado Police Department where he was interviewed by Detective Jamie Morrow. At approximately 4 a.m., Detective Morrow read Appellant his rights, and Appellant signed the rights form. When asked if he wished to have an attorney, Appellant replied that he wanted “his attorney,” but he did not remember his attorney’s name. Detective Morrow told Appellant that he would give him a few minutes to remember his attorney’s name, and the detective left the room. Within five to ten minutes, Detective Morrow returned and asked Appellant if he remembered his attorney’s name. Appellant replied that he had not. Detective Morrow asked Appellant, “What do you want to do?” At that time, Appellant indicated that he wanted to make a statement. Detective Morrow said, “Even without an attorney?” Appellant said, “Yes.” Detective Morrow used the original form to reMirandize Appellant and took a statement from him. At the pretrial motion hearing, Detective Morrow testified that he “read his rights to him a couple of times.”

During the interview, before Appellant’s confession, the following colloquy took place:

Morrow: O.k., James when ... ah ... when I read you your rights... ah ... you said you wanted your attorney present... I give you an opportunity to ... to ... to tell me who your attorney was so we could get him up here ... Is that correct?

Wedgeworth: Yes sir.

Morrow: At that time you told me you didn’t have one but you wanted to go ahead and speak to me, is that correct?

Wedgeworth: Yes sir.

Morrow: O.k., you wasn’t forced to give me ... to talk to me or anything like that was you?

Wedgeworth: No sir.

After Appellant confessed to shooting the victim with a twenty-gauge shotgun, the following colloquy took place:

Morrow: And you ... you ... you understand you had the right to talk to a lawyer before any questions were asked . . . you may have had one present . . . you understood that?

Wedgeworth: Yes sir.

Morrow: O.k. if you couldn’t afford one ... one would be appointed to represent you free of cost . . . you understood that... that correct?

Wedgeworth: Yes sir.

Morrow: O.k., as I said earlier ... when I started talking to you ... you said you wanted your attorney... but you didn’t have .. . you . .. you didn’t you didn’t have an attorney and you ... you choose to go ahead and speak to me of your own free will... is that correct?

Wedgeworth: Yes ... I did not know of a name of an attorney right offhand.

Morrow: So ... did I threaten you for you[r] statement?

Wedgeworth: No sir.

Morrow: Did I make you any promises for your statement?

Wedgeworth: No sir.

Morrow: O.k., your statement made of your own free will?

Wedgeworth: Yes sir.

On August 5, 2005, a criminal information was filed charging Appellant with the capital murder of Megan Harbison. On August 3, 2006, Appellant filed a motion to suppress, alleging that El Dorado police “conducted an illegal custodial interrogation of the defendant after the defendant made an unambiguous request for legal counsel and before counsel was provided in violation of the Fifth and Fourteenth Amendments to the United States Constitution and the Constitution of the State of Arkansas.” The circuit court entered an order on August 4, 2006, denying Appellant’s motion to suppress. The circuit court ruled that “the defendant was advised he had the right to counsel, implied he wanted his counsel but could not remember his name, and then did not ask for alternate counsel, did not ask to call his family or ask for a court-appointed attorney when asked what he wanted to do.” The circuit court found that Appellant understood his rights and voluntarily and intelligently waived his right to have counsel present.

A jury found Appellant guilty and sentenced him to life imprisonment without parole. A judgment and commitment order was filed on August 17, 2006. Amended orders were filed on August 21, 2006, and September 5, 2006. On August 30, 2006, Appellant filed his notice of appeal.

For his sole point on appeal, Appellant argues that the circuit court erred in denying his motion to suppress and in allowing evidence to be introduced at trial that was allegedly obtained in violation of his Fifth Amendment right to counsel. Specifically, Appellant contends that his right to counsel was violated when he continued to be interrogated by a police officer when he requested to have an attorney present. Appellant asserts that he clearly invoked his Fifth Amendment right to counsel and that he did not initiate further communication with Detective Morrow.

In response, the State argues that the circuit court properly denied Appellant’s motion to suppress his custodial confession. The State concedes that it is undisputed that Appellant invoked his right to counsel after being advised of his Miranda rights and that Detective Morrow, rather than Appellant, initiated contact. The State asserts the detective’s post-invocation communications with Appellant did not amount to a re-initiation of an interrogation, but rather Appellant’s- communication with Detective Morrow amounted to a self-incriminating statement.

In Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003), we clarified the appropriate standard of review for cases involving a trial court’s ruling on the voluntariness of a confession: We make an independent determination based upon the totality of the circumstances. Id. We review the trial court’s findings of fact for clear error, and the ultimate question of whether the confession was voluntary is subject to an independent, or de novo, determination by this court. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008).

The narrow issue is whether the detective interrogated Appellant after initiating contact with him. Both the Fifth and Sixth Amendments provide a right to counsel. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). Under the Fifth Amendment, the right to counsel is derived from the amendment’s prohibition against self-incrimination while in custody. See Miranda v. Arizona, 384 U.S. 436 (1966). Once a defendant invokes his Fifth Amendment right to counsel at a custodial interrogation, the police may not interrogate any further until counsel is provided, or the defendant initiates further communication. Michigan v. Jackson, 475 U.S. 625 (1986).

In Robinson v. State, 373 Ark. 305, 283 S.W.3d 558 (2008), we stated that once a defendant is read his or her Miranda rights, the relevant inquiry is whether a defendant’s initial response “indicated in any manner” under Miranda and Arkansas Rule of Criminal Procedure 4.5 an invocation of the right to remain silent or an invocation of the right to counsel. If so, the interrogation must immediately cease whenever the suspect states that he or she wants counsel, Miranda, 384 U.S. at 474, or when he or she invokes the right to remain silent, pursuant to Miranda and Rule 4.5. In Robinson, supra, we noted that neither the record reflected nor the State argued the existence of a waiver.¹

However, an accused may waive her rights by initiating further communication with the police. Jackson, 475 U.S. at 636. If an accused waives his or her rights and initiates further communication, exchanges, or conversation with police officers, after initially requesting an attorney before speaking, any resulting statements may be admissible. Vidos, supra (citing Edwards v. Arizona, 451 U.S. 477 (1981)). 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. Id.

With this precedent in mind, we turn to the present case. In its order, the circuit court wrote: “The court finds this to be a very close question. However, the defendant was advised he had the right to counsel, implied he wanted his counsel but could not remember his name, and then did not ask for alternate counsel, did not ask to call his family or ask for a court-appointed attorney when asked what he wanted to do.” Here, the facts show that Detective Morrow testified that he read Appellant his rights and specifically told him that he had a right to have a lawyer present. Appellant indicated that “he wanted his lawyer present” but could not identify who his attorney was. Detective Morrow told Appellant that he “would leave the room for a little bit, give him some time to think, [and] maybe remember who his attorney was.” After five to ten minutes, Detective Morrow returned to the room, asked Appellant if he recalled his attorney’s name, and Appellant said “he did not.” Detective Morrow then asked Appellant “what he wanted to do,” and according to the detective, Appellant “said he wanted to provide the statement.” Detective Morrow asked, “Even without an attorney?” Appellant replied, “Yes.” The detective then read his rights again, using the same form, and took Appellant’s taped statement. Detective Morrow testified that Appellant signed a Miranda form, which Detective Morrow signed and dated July 16, 2005, at 0350 hours. Appellant signed the form and dated it July 16, 2005, at 4:00 a.m. It is unclear from Morrow’s testimony when exactly Appellant signed the Miranda form.

Here, Appellant asked for his attorney, a clear invocation of his right to counsel. The State concedes that Detective Morrow initiated contact following a five to ten minute break taken to give Appellant the opportunity to remember his attorney’s name. Though the State argues waiver and that the two questions by Detective Morrow were not interrogation, it is clear that Appellant’s confession was taken after the invocation of right to counsel and before either counsel was present or Appellant initiated further conversation, as required by Vidos, supra.

Because the Vidos prerequisites were not met, we hold that Appellant’s right to counsel was violated. Therefore, it was error for the circuit court to admit the confession. Pursuant to Arkansas Supreme Court Rule 4-3 (h) (2008), the record in this case has been reviewed for all other objections, motions, and requests made by either party, which were decided adversely to Appellant, and no prejudicial error has been found. See Robinson, supra.

Reversed and remanded.

Brown and Danielson, JJ., concur. Wills, J., not participating.

1 We note that neither party argues Rule 4.5 in this case.