People v. Kutlak

JUSTICE GABRIEL,

dissenting.,

€343 The majority holds that Kutlak's statements did not constitute an unambignous and unequlvocal invocation of his right to counsel and that Kutlak validly waived his right to counsel before making the statements that a d1v1s1on of the court of appeals concluded should have been suppressed In so holding, the majority overrules portions of a number of our prior cases. The, maJorlty reaches the foregoing conclusions notW1th-standmg the facts that (1) in their initial brlefs, no party reused the mvocatmn Issue or asked us to overrule any of our. pmor precedent; and (2) we did not grant certiorari to address the invocation issue but rather raised that issue sug sponte, after briefing and oral arguments were complete, and then requested supplemental briefs.

« 34 In my view, the majority's analysis is inconsistent with our proper role, and for that reason, I disagree with that analysis. Even were I to conclude that it is proper for us to reach the invocation issue, however, I would still disagree with the majority's analysis because I believe that it is inconsistent with well-settled law. Accordingly, I respectfully dissent.

I. Facts and Procedural History

~T85b The majority has accurately set forth the facts relating to the interrogation at issue, and I need not repeat those facts here. It is important to note, however, that (1) in the trial court and in the court of appeals, the prosecution conceded that Kutlak had suffi-tiently invoked his right to counsel; (2) both the trial court and the division of the court of appeals below so held, with the division concluding that the request was unambiguous; (8) as the People observe, the question of whether Kutlak's invocation was sufficient was outside our certiorari grant, which assumed the sufficiency of the invocation; and (4) the People conceded the invocation issue in their initial briefing before us and did not provide any analysis of that issue. In short, no party addressed -the invocation issue, much less asked us to overturn any prior case law on the question, until we raised that issue sua sponte and requested supplemental briefing, And even then, no party asked us to overrule the "can reasonably be construed" standard that we have previously employed. Neg, eg., People v. Lynn, 2012 CO 45 , T6, 278 P.3d 365, 367 . To the contrary, the People reiterated that standard in their supplemental brief.

II. Analysis °

A. Procedural Issues

1 36 As the Supreme Court has stated:

In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant's rights. But as a general rule, "(olur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief,"

Greenlaw v. United States, 554 U.S. 237, 248-44 , 128 S.Ct. 2559 , 171 LEdJd2d 399 (2008) (footnote and citation omitted) (quoting Castro v, United States, 540 U.S. 375, 386 , 124 S.Ct. 786 , 157 L.Ed.2d 778 (2008) (Scalia, J., concurring in part and concurring in judgment)).

137 I recognize that the party presentation rule does not constrain our obligation to ascertain controlling law, See Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976, 980 (dth Cir.2015). Nor are we limited to the particular legal theories advanced by the parties when an issue or claim *209 is properly before us, Kamen v. Kemper Fin. Servs., Inc., 500 U.8. 90, 99, 111 S.Ct. 1711 , 114 LEdJ.2d 152 (1991). These principles, however, presume that an issue is properly presented and must be decided,. Thus, "Tilt is axiomatic that in any appellate proceeding this court may consider only issues that have actually been determined by another court or agency and have been properly presented for our consideration." - Comm. for Better Health Care for All Colo. Citizens v. Meyer, 880 P.2d 884 , 888 (Colo. 1992) {emphasis added),

€38 Here, the parties did not properly present the invocation issue on which the majority bases its decision. Nor 'do I believe that we need to reach that issue in order to address the question that the parties did present, namely, whether Kutlak reinitiated the conversation after invoking his right to counsel, All parties in this case consistently took the position that no question of the sufficiency of the invocation was presented. Likewise, in their initial briefs, no party raised any issue requiring us to revisit our prior case law. And although the People argued in their supplemental brief that if an invocation is ambiguous, then the police are not obligated to clarify a defendant's intent before continuing to question the defendant, the People did not ask us to overrule the "can reasonably be construed" standard governing requests for counsel but rather reiterated that standard. ' '

T 39 In light of the foregoing, I believe that the majority's analysis in this case is inconsistent with the party presentation principle and, thus, with our proper role. See Green-law, 554 U.S. at 248 , 128 S.Ct. 2559 . Specifically, other than with respect to questions like those involving subject matter jurisdiction, see Brock v. Nyland, 955 P.2d 10837 , 1048 (Colo.1998), overruled on other grounds by Finmie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1258 (Colo.2008); C.R.C.P. 12(h)(8), I do not believe that it is our role to notice and address issues that no party has raised and that need not be decided. Rather, it is the parties' role to frame the issues for our decision, and questions not properly presented by the parties must await another day. See Greenlaw, 554 U.S. at 248-44 , 128 S.Ct. 2559 .

[ 40 I am not persuaded otherwise by the majority's assertions that we are not bound by the People's repeated concessions and that we may determine the issue on appeal on 'any ground supported by the record, whether relied on or- even considered by the parties below. See Maj. op. 1110-11. In my view, the case authority on which the majority reliés does not justify our disregarding the party presentation principle or the central tenets of our adversary system from which that principle derives.

B. 'Merits

- In light of the foregoing, I believe that the only question properly before us is whether Kutlak reinitiated the interrogation, a question that the majority does not address. Nonetheless, for the sake of providing a complete analysis, I will address both the invocation and reinitiation issugs. | °

1. Applicable Law

[ 41 In Edwards v. Arizona, 451 U.S. 477 , 484-86 & 1,9, 101 S.Ct. 1880 , 68 L.Ed.2d 878 (1981), the Supreme Court held that when an accused has invoked his right to have counsel present during a custodial interrogation, he or she is not subject to further interrogation unless the accused (1) initiates further communication, exchanges, or conversations with the police and (2) knowingly and intelligently waives the right to have counsel present. Accord Dovis v. United States,; 512 U.S. 452, 458 , 114 S.Ct. 2850 , 129 L.Ed.2d- 862 (1994). Both the Supreme Court and this court have consistently described Edwards as creating "a 'bright-line rule' that all questioning must cease after an accused requests counsel." Smith v. Tilinois, 469 U.S. 91, 98 , 105 S.Ct. 490 , 88 L.Ed.2d 488 (1984); accord People v. Kleber, 859 P.2d 1861 , 1368 (Colo.1998).

42 To be sufficient, a request for counsel must be unambiguous and unequivocal. Lynn, ° 6, 278 P.3d at 367 ; People v. Brad-show, 156 P.3d 452, 457 (Colo:2007). In determining whether an gceused's invocation of the right to counsel was sufficient, we must give a broad, rather than a narrow, interpretation to the accused's request,. Lynn» 16, 278 P.8Bd at 368; Kleber, 859 P.2d at 1863. This is because an accused may not be legal *210 ly sophisticated or a paragon of clarity in his or her use of language. Lynn, 16, 278 P.3d at 368 ; People v. Romero, 958 P.2d 550, 554-55 (Colo.1998). Thus, the accused's request need only be sufficiently clear so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis, 512 U.S. at 459 , 114 S.Ct. 2850 ; Lynn, 16, 278 P.8d at 368; Bradshaw, 156 P.Bd at 457. And although the majority purports to overrule the "can reasonably be construed" standard based on its reading of Davis, the Davis Court stated, "Invocation of the Mirando right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney'" Davis, 512 U.S. at 459 , 114 S.Ct. 2850 (quoting MeNeil v. Wisconsin, 501 U.S. 171, 178 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991)). I perceive nothing in Davis suggesting an intent to overturn or modify that standard.

43 If a request for counsel is sufficiently clear, then the police must "serupulously honor" that request. Bradshaw, 156 P.3d at 457 . If the request is ambiguous, however, then the interrogating officer may, but need not, ask limited questions designed to clarify the accused's wishes regarding the presence of counsel,. See Davis, 512 U.S. at 459-61 , 114 S.Ct. 2850 ; accord Lynn, I 8, 278 P.3d at 368 ; Kleber, 859 P.2d at 1868. An accused's post-request responses to further interrogation, however, "may not be used to cast retrospective doubt on the clarity of the initial. request itself. Such subsequent statements are relevant only to the distinet question of waiver." - Smith, 469 U.S. at 100 , 105 S.Ct. 490 ; accord Lynn, §17, 278 P.B3d at 370; Kleber, 859 P.2d at 1864.

44 As noted above, if an accused makes an.unambiguous request for counsel, then the police must cease further interrogation unless the accused initiates further communication, exchanges, or conversations with the police. Davis, 512 U.S. at 458 , 114 S.Ct. 2350 ; Edwards, 451 U.S. at 484-85 , 101 S.Ct. 1880 . 'For a suspect to reinitiate a conversation, his or her comments must demonstrate a willingness and a desire to discuss the investigation. People v. Redgebol, 184 P.3d 86, 99 (Colo. 2008). The prosecution must prove such a waiver of the right to counsel by clear and convincing evidence. Id.

2. Invocation

{45 Applying the foregoing principles here, I agree with all of the parties and with the division of the court of appeals that Kut-lak unambiguously and unequivocally requested counsel. As the majority points out, Kutlak stated that he had a lawyer on retainer and then asked, "(Clan we get him down here now ...?" In my view, this expression 'of the desire for counsel is at least as unambiguous and unequivocal as the requests that we have consistently deemed sufficient in our prior cases. See, eg., Bradshaw, 156 P.3d at 456 (concluding that "I'm going to have to talk to an attorney about this" was an unambiguous and unequivocal demand that the interrogation end and counsel be summoned); People v. Adkins, 118 P.8d 788, 790, 792-98 (Colo.2005) (holding unambiguous the accused's request for an attorney when the officer was informing the accused of his right to counsel and the accused. interrupted, "[Wlhy don't I have one now?"); People v. Fish, 660 P.2d 505, 509 (Colo.1988) (holding unambiguous the accused's request for counsel when he asked whether he needed an attorney and the interrogating officers assured him that he did not), abrogated on other grounds by People v. Hopkins, TT4 P.2d 849, 852 (Colo.1989).

1 46 I am not persuaded otherwise by the majority's findings that Kutlak was merely inquiring as to the logistics and timing of possibly securing counsel's presence and that a logical inference was that he was merely weighing his options with respect to counsel. In my view, these findings are unsupported by the evidence in the record. Moreover, they appear to construe the conversation in the light most favorable to the prosecution, contrary to our settled case law requiring that we construe Kutlak's statements broadly, recognizing that he might not be legally sophisticated or a "paragon of clarity" in his use of language. Romero, 958 P.2d at 554-55 ; Kleber, 859 P.2d at 1368. _

47 Accordingly, I believe that Kutlak's invocation of his right to counsel was unam *211 biguous and unequivocal and that Detective Johnson was therefore required to cease all questioning, unless and until Kutlak reinitiat-ed the conversation. The question thus becomes whether Kutlak so reinitiated the conversation. I do not believe that the record supports a finding that he did so.

3. Reinitiation

" 48 With respect to the question of whether Kutlak reinitiated the conversation after he invoked his right to counsel, I believe that our prior decisions in Bradshaw and Redge-bol are on point.

149 In Bradshaw, 156 P.B8d at 458, the defendant unambiguously requested counsel. Rather than honoring that request, the interrogating officer asked whether the defendant was saying that the sexual contact at issue was consensual, Id. Only after so inquiring did the officer seek to confirm whether the defendant wanted to speak with a lawyer, and the defendant responded, "Well, yeah." Id. Again, the officer did not cease the interrogation and immediately contact the public defender, as we suggested he was required to do. Id. Rather, he asked several more times whether the defendant would continue the interrogation, and the defendant ultimately relented, saying, "Alright. Let's talk." Id.

$50 The People contended, as they do here, that they were merely seeking to clarify the defendant's intent. Id. at 458. They further asserted, as pertinent here, that the defendant reinitiated the interrogation by asking the officer what level of felony he was facing,. Id. We rejected both arguments, concluding, among other things, that the defendant "could not have initiated further communication because [the interrogating officer] never stopped the interrogation." Id. at 459.

51 In Redgebol, 184 P.8d at 99, the People argued that the defendant did not unambiguously invoke the right to counsel and even if he did, he reinitiated questioning after doing so. There, the defendant stated that he would like a lawyer. Id, The interrogating officer confirmed the request and stated that he would stop. Id. Approximately twenty seconds later, the defendant, who was communicating through an interpreter, indicated that he did not understand and asked whether the officer would question him and then the lawyer would arrive, or whether both the officer and the lawyer would be there, Id.

152 After concluding that the defendant had made an unambiguous and unequivocal request for counsel, we rejected the People's argument that the defendant had reinitiated the conversation when he expressed confusion about how the questioning would proceed. Id. at 99-100. As pertinent here, we noted that the People's argument regarding reinitiation failed to acknowledge that the alleged reinitiation occurred within thirty seconds of the defendant's request for counsel. Id. at 99. We further observed that the People had cited no case law from this or any other jurisdiction in which a court had held that a defendant invoked his right to an attorney, thus ending the questioning, and then reinitiated questioning in less than a minute. Id. We then concluded that Brad-show was controlling, citing with approval its conclusion that because the officer did not end the interrogation, the defendant did not reinitiate it. Id. at 100.

158 Here, the alleged reinitiation of the conversation occurred within twenty-four seconds of Kutlak's request for counsel. Moreover, I perceive nothing in the record to indicate that Detective Johnson either seru-pulously honored Kutlak's request for counsel or stopped the interrogation. After Kut-lak asked whether they could get his counsel there "now," Detective Johnson did not cease the interrogation and allow Kutlak to obtain the assistance of counsel. 'To the contrary, the detective told Kutlak, "It may be difficult. I mean, it's, it's difficult to get in touch with him. It may be something we have to do later." In my view, this was not an attempt to clarify Kutlak's desire for counsel, as the majority finds, nor does it reflect any effort on Detective Johnson's part to honor Kutlak's request. To the contrary, the record indicates that it was an effort to continue to engage Kutlak in conversation, in the hope that the alleged (but unfounded) statement of difficulty in getting counsel to the interroga *212 tion would persuade Kutlak to keep talking, which is exactly what occurred.

1 54 In these cireumstances, I perceive no cessation of the interrogation. Accordingly, for the reasons set forth in Bradshaw and Redgebol, Kutlak could not have reinitiated the conversation with Detective Johnson. Bradshaw, 156 P.S8d at 459; Redgebol, 184 P.8d at 100.

55 I am not persuaded otherwise by the People's assertion that Kutlak later expressed a desire to talk, saying, "I'm gonna take a dice roll and I'm gouna talk to you guys." Had Detective Johnson scrupulously honored Kutlak's request for counsel, as he was required to do, Kutlak would not have gotten to the point of making that statement, at least not without consulting, with counsel first.

[ 56 Accordingly, I do not believe that the record supports a finding that Kutlak reiniti-ated a dialogue with Detective Johnson after invoking the right to counsel. He could not reinitiate a conversation that never stopped.

III. Conclusion

157 For these reasons, I would affirm the decision reached by the court of appeals division here, and therefore, I respectfully dissent. '

I arfi authorized to state that Justice HOOD joins in this dissent.