stating "the evidence offered must be probative of some issue to be properly considered in the penalty phase"
How later courts described this case
- stating "the evidence offered must be probative of some issue to be properly considered in the penalty phase"
Written by the judges who cited it.
The opinion
Darrell Hickman, Justice, concurring. The majority opinion states that the interrogating officers “knew” the appellant wanted to speak to her lawyer, as counsel, thus invoking her rights under Miranda v. Arizona, 384 U.S. 436 (1966). That is not entirely correct. They did concede, and it is not disputed, that she asked to see “Dub”. However, the question is whether she meant she wanted to talk to her lawyer, get his advice, and have him present, or to merely discuss her charges with the prosecuting attorney. Did she want to apologize for any embarrassment it might cause the prosecutor since he had acted as her attorney and knew her and her husband socially? There was considerable testimony regarding these questions. In my judgment the totality of the circumstances leads me to conclude that she was invoking her right to counsel. Considering the circumstances, her statement undoubtedly could have been interpreted by the officers as an invocation of her right to counsel. The officers did not, however, admit that they understood it that way. On its face, the statement “I want to talk to Dub” would not, as a matter of law, be a clear and unequivocal assertion of her right to counsel. However, “I want to talk to Dub, my lawyer, before answering your question” would be such an assertion.
When the burden of the state and the totality of the circumstances are considered, the police should not have proceeded further without inquiring if indeed she wanted a lawyer, or merely “to talk to Dub.” Clearly, there is a difference.
Holt, C.J., joins in the concurrence.