Opposition Brief — Utah v. Sampson

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Text

U.S.

Supreme Cou

91-1072

No.

HE SUPREME COURT OF THE UNITED STATES

a’

199

OCTOBER TERM,

BRIEF IN OPPOSITION

RESPONDENT ’S

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ase

QUESTIONS PRESENTED

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properly conclude that

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Mr. Sampson’s fifth amendment right

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self-incrimination were

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violated when police officers failec

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES a ele fel 6 Mle 6. a eee es o> O76 ers iii

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REASONS FOR DENYING WRIT

POINT I. JHE UTAH COURT OF APPEALS CORRECTLY HELD

THAT MR. SAMPSON’S FIFTH AMENDMENT RIGHTS AGAINST

SELF-INCRIMINATION WERE VIOLATED WHEN POLICE

OFFICERS FAILED TO CLARIFY HIS EQUIVOCAL REQUEST

FOR COUNSEL WHILE UNDERGOING CUSTODIAL

a. > & 6. 6 6) s e698 8 * 6 6) e.6 * 8s 4

A. REASONS FOR DENYING STATE’S PETITION ON

B REASONS FOR DENYING STATE’S PETITION ON

POINT II : 8

C. REASONS FOR DENYING STATE’S PETITION ON

PORE Oe 6-6 6 ee ce eer eee aN Se ee 13

POINT It. THE UTAH COURT OF APPEALS PROPERLY

APPLIED THE EXCLUSIO} RULE IN THIS CASE 15

Appendix A: Court of Appeals’ Opinion

Appendix B: Utah Supreme Court denial of Petition for Writ of

Certiorarl

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state v. Herrera, 49 Or. App. 1075, 621 P.2d 1209 (1980)

state v. Kelly, 718 P.2d 385 (Utah 1986) ....

state v. Sampson, 808 P.2d 1100 (Utah Ct. App. 1991),

cert. denjed, 817 P.2d 327 (Utah 1991) 2

State v. Smith, 661 P.2d 1001 (Wash. App. 1983)

T . c _ fr 779 > A } ~ ~~

United States v. Cherry, 73 F.2d 1124 (Sth Cir. 1979)

TT +o < . 7 . ,A 2 QC A

United states v. Clark, 499 F.2d Ue (4th Cir 1974)

~ y } r 3 . | fc ~ 4

United State v F che G6 F.2G 1398 (Sth Gir 19

~~ +> _ co 7 ar 7 W

JInited até Kel ey ; > r <4 LOth Lr

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Beene s 19

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

STATE OF UTAH,

ARLA REINALDX SAMPSON, Respondent

Respondent irlos Reinald impson respectfully request

that this Court tne State of Utah’s Petition for Writ I

ertiorarl1 seeking review cr the Utah Court of Appeals’ pinion lyr

State f Utah v }amy n, 808 P.2d 1] can Ct. ADI 1991), >t

Jenied b4/ F220 y Utah 199 ee Appendix for copy f pinilor

STATEMENT OF THE CASE

Card Reinald mampson’s intellectual abilitie are

minimal ats ntracted Spinal Meningiti ie ribed as "a

serious infectior f the brain that can cause Drain damage," at the

age of seven months; he 1s borderline mentally retarded. See tria

transcript at page ana sentencing transcript 2 at pages 8-9.

With great difficulty nd familly sacrifice, he managed to graduate

from high school through special education classes. Trial

transcript at pages 691, 701 and 725-26. At the time of this

incident, Carlos was twenty-six years old; he has no prior

For purposes of this Objection to the State of Utah’s

Petition for Writ of Certiorari, Mr. Sampson adopts the statement of

the case as contained within the opinion of the Utah Court of

Appeals as more complete and accurate than that espoused by the

State of Utah. Exceptions to various factual claims or omissions

made by Petitioner will be noted during argument of the respective

» - 1t ?

REASONS FOR DENYING THE WRIT

t petiti to this Court, the State of Utah

lentifie four questions for review. State’s petition at (1). As

ndicated in the opinion of the Utah Court of Appeals, the State of

tal 2 - ered lt positions on these questions

At trial, the State of Utah raised but did not dwell on

the issue f custodial interrogation, opting instead to argue that

Mr Samy lid t invoke equivocal] sr otherwise, his right to

AMPSOr P.2d at 1104, 1108

jirect appeal to the Utah Court of Appeals, the State

f tar hose to focus on the custodial interrogation issue

Virtua y ignoring, although stopping short of conceding, the

€ , reque >t [ GS [SOounsel lssue Id at 1110

Also on direct appeal, the State of Utah did not raise

ar question regarding the effect, 1f any, of a second set of

Miranda warnings given to Mr. Sampson. Id. at 1108 n.14. After the

Court-of Appeals reversed the conviction of Mr. Sampson, however,

. ~ aAnmk , co} r> ; . le a+ ,

the State took issue with the opinion’s footnote fourteen and

presented for the first time the issue that the subsequent warnings

either clarified the equivocal request for counsel or obviated any

need to clarify the request. Id. at 1112.1 The Utah Court of

Appeals permitted rehearing, requesting briefing and argument on the

new issue. ra.

oa 7, ~ . le . i. 17 )

The Court of Appeals rejected the argument, Id. at 1114,

and the Utah Supreme Court denied the State of Utah’s petition for

certiorari f ed in that IFt state v. Sampson, 817 P.2d 327

TT? ar 199

} [Tr aeant tr - ligt it the + rte + + if / ar Jument ; Ar j

jemonstrat 1 aga tl 1. the tate’ fa lre t

re nize tnat tne Ct i rt nece ge SS ae ina t 11a

interrogat | 4 tnrest 1 requirement wher tC denied

Mr Same ~ j M e , > Ippre 4 r the jr } is +} “he he , 1d r or

informed z 3 t inderst 1 the ind Vv Carily waived

them Additi y tne Tate f Utah has er ind remalns unable

and r inwill y ft ré J ze important j cCinct >; announced by

this irt between M inda violat I ing £ift imendment

violations and between xr mnt ¢t s1ience iSé ind right to counsel]

Y mr « nr y y + + + £ + , _

M Amps res{ 1s ne state f an’s argument i

; > + + . +> ~~, . + aa + . . a lef

liiustratl che rre less I lé is 1Y lL Appeals op1ini

T ~ ? , - c cr ~ : . , + . {oa - " r . on _

l. Notably, Mr. Sampson had indicated from his Motion to Suppress

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inconsequential because the equivocal request for counsel had neve:

~) -> , > " al a ; - “7 P ~ 14 . ~~

been clarified nor counsel provided and that police, not he,

initiated the subsequent discussions.

and the appropriateness of the Utah Supreme Court’s refusal to

review

res e

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inappr

that 1

the decision.

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I. THE UTAH COURT OF APPEALS CORRECTLY HELD

THAT MR. SAMPSON’S FIFTH AMEN eo RIGHTS

AGAINST SELF-INCRIMIN ON W WHEN

POLICE OFFICERS FAILED TO CUARTFY HIS FOUIVOCAL

REQUEST FOR COUNSEL WHILE UNDERGOING CUSTODIAL

INTERROGATION.

A. REASONS FOR DENYING STATE’S PETITION ON

[The State of Utah requests this Court i1n its point I to

ther a polygraph examinatior. 1s itself a custodial

n requir jy Miranda warnings. That request 1s

te because the Utah Court of Appeals did not indicate

ygraph examination resolved the issue of custodial

n. The fact Mr. Sampson took a polygraph examination i

2 totality of circumstances which demonstrated custodial

yn. The Court of Appeals decided that the trial court

id necessarily found custodial interrogation to have

icipatory to its "conclud{ing] that defendant was

his rights, understood his rights, and voluntarily

m--conclusions which would be irrelevant if the court

re had been no custodial interrogation.” Sampson, 808

14. The appellate court’s analysis, consistent with its

to review for correctness, assured as accurate the trial

clusions of law. Id. at 1103-04 (citing, inter alia,

Equities, Inc. v. American Savings & Loan Assoc., 739

P.2d 1133, 1136 (Utah Ct. App. 1987); and Scharf v._

P.2d 1068, 1070 (Utah 1985)).

The Utah Court of Appeals reserved reaching the question

the State now poses to this Court; the appellate opinion, however

. y nk ++ “om lu + “I: ) . . . Fes AR .

leaves no doubt it resolved the istodial interrogation question in

favor of Mr. Sampson, as had the trial court. Id. at 1107-08

"unless we find that defendant’s Miranda rights were adequately

protected by reason f the exchange at the outset r the polygray

examination undertaken f jt Elliot there was idequate

‘Mirandizing’ f defendant before he jave his iIstcodia nfe l “s

and at 11] "the tate is t the ra é f Mira : T \de a

je liber ate ta t } ; 1é > a y hy he a 7 at

‘efendant was not subjected t , todila terrogat , at the t (

ft the f ygrapn examinat i lssue wI na w De

resolved lyr lefendant ’ fa ' i ; the : ? atens

fr tne n ] n [ t } t jat t! rt tf Appea

y 11inst a k WoT rey ewes ) ‘ ‘ > + . ) eh, *~-s)} “a P

palin ingl id } ly

‘ourt t¢ estab] h the eer oe ths 1sj hy . =a

1104- [esr le. sr : : M arty +f i

(1984); State v Ke ’ ] } tan 198¢ and rit ;

Cc ntrary + + > ‘ber f + » > i's serti >> at the¢ +

of Appeals had only t! fact that Mr Jampson ¢t K a polygrap!

examinat] 1 to enable a f1nding I lst jial interr yjation Petit

of State of Utah at pads } the ZG 3 Keqd at the totality f

lrcumstances, nly ne f wi wa the p ygraph examinat ne

yzed numerous

ed and analy

aian

needed to show" or "accomplish" before they “walk{ed out of here";

the examination occurred in a so-called interrogation room ei ynt

feet by ten feet in size containing one desk and tw whalrs, a tape

recorder and the polygraph equipment; the interrogation room wa

ist rt the ma yuad r m with approximately twenty t

twenty-five ‘ficers working there at the lime r the interrogat

jt. Elliot read M 1My Miranda rights informing him he w

n tae * ; nop" f t irriva it the tat M my wa

never ‘ + " Y ' _+ M

} ed the ! t t et WwW the

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Mr . — i } + } . } ; + ‘ tho Ot

r the read r the M } i wa J yt t iN cG

B. REASONS FOR DENYING STATE’S PETITION ON

POINT II

Neither should this Court grant the State of Utah’s

petition on point II. In point II, Petitioner is asking this Court

to rule on an issue of purported gratuitous Miranda warnings without

the Utah Court of Appeals having indicated the warnings were in any

way gratuitous. Several reasons exist why this Court should not

consider the Petitioner’s request for this Court to determine what

effect should be given to an equivocal request for counsel following

jratulitous Miranda warnings. First, the Mlranda warnings were not

jratuitously given ¢t Mr. Sampson As indicated above, the Utah

urt f Appea “ de iff med that portion of the trial

urt’s conclusions indicating, by necessity, that Mr. Sampson was

tustody and being interrogated at the inception of the

ygraph. By finding that Mr. Sampson equivocally invoked the

right to counsés it the inception of the polygraph when he responded

t the warnings of Sgt. Elliot, the Court of Appeals has decided

t 3@ Warnings were significantly, not gratuitously, given. Once

warned of his right to Sunsel, Mr. Sampson could not then be

Inwarned of that right

The second reason this Court should not grant

Petitioner’s point II 1s because the State of Utah is raising the

question of gratuitous warnings for the first time before this

Court, having failed to raise the claim before the Utah Court of

uding even on rehearing when the potential issue was

—

Appeal

purportedly revealed in the initial opinion of the court. This

Court has long held that it will not review for the first time on

petition for writ of certiorari a claim not properly raised below

and addressed by the lower court. Delta Airlines v. Auqust, 450

U.S. 346, 362 (1981) (question presented in petition but not to

court of appeals is not properly before us) see,

otates v. Mendenhall], 446 U.S. 544, 551-52 n.5 (1980); Ad

“< c " ¢ T 4 A 4 17 q " )

Kres > x P IISO > : ie} : 4 Pele i 1aKi1mM ¥ Miller,

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425 y an va + r/¢€

y ‘ ans irda aa f ? ] 4 Tt e é T Tt ‘ é

pre ‘ents j r > ‘ valet tate ‘ - - ; ot + ‘ + P ‘

ASSuI ng tne wal 1g we ] it | ¢ t t »e “A

nonetheless eq ; ked lemand 3 that f f r

l aT ry > > a y ‘ > > > " ny a + » + + 4

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) Mor 7-3, ' P ‘ + > Annes

ndicate the rrectne f that ana I

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the state were 4 SC t tel 4 | »>ruLS>VeO t tnat

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ne had ie righ in appointed lawyer, bu

ila b ) . + ’ ' + + - + ‘

MiU, Willie < n ln Sele .U interr IGa Cc, rerusé

+ vw) + 17 / a - as

») provide the lawyer on the ground that the

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Suspect was not actually in custody, the

c “noct 1-117 } q 7-2 hat ~ - ’ +

Suspect would be led to believe that no reque

+ - ~ : } emirliaA . ‘ _ mh " eat,

for counsel would be honored. fhe coercive

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effect of continued interrogation would thus bse

S Cause the suspect would

believe that the police "promises" to provide

t tutional rights were

rustworthy, and that the police would

continue to violate those rights as they

h ran

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nces to the

Id. 911 F.2d at 516 n.11.

The Supreme Court of Alabama relied on Tukes v. Dugger to

decide that the question of custody is no longer critical where a

police officer provides yet unrequired warnings which are then

invoked by the suspect.

[C]ustody is not crucial to our holding in this

case. We hold that once a police officer

informs a person of his or her rights under

Miranda, the police must honor that person’s

exercise of those rights even if the individual

is not in custody. Although the Miranda

warnings may not have been required if...

interrogation was noncustodial, once the police

fficer advised [the suspect] of her rights he

was bound to honor her exercise of those rights.

rte mer v. State, 1991 WL 175446, at page 3 (Ala. Aug. 16,

} t | ; IUugGger, 91 Pueg tite Ciz 1990)

> > So Ir ~ +-

A ve recent Tentt rcuit rt of Appeals’ opinion

lé rdditi il rat nale for this position and comports with

the pr et c. Cr tah Court of Appeals’ decision In United

tate V Kelsey, 5 Zsa aes feoce Cit. Dec. 20, 1991), tae court

rejected the government’s argument that invocation of the right to

insel is gratuitous unless and until a suspect 1s subjected to

custodial interrogation. Relying on Arizona v. Roberson, 486 U.S.

675 1988 the Tenth Circuit stated that when a suspect requests

ion arises "that he considers himself unable to

}

“

Sresumpt

at 683).2

When Sgt. Elliot informed Mr. Sampson of his rights at

the beginning of the polygraph examination, Mr. Sampson responded

with an equivocal request to invoke the right to have counsel assist

him in dealing with the inquiries about to take place. Having once

alerted and educated Mr. Sampson to his right to have a lawyer

assist him, Sgt. Elliot should not then be able to nullify the

desire of Mr. Sampson to exercise that right and have legal

assistance by arguing, "Well, it was too early to tell him he had

the right to a lawyer." By labeling the warnings by Sgt. Elliot as

gratuitous, the State of Utah argues that very point. The fifth

amendment right to counsel requires more than that urged by the

State of Utah. This Court should reject Petitioner’s claim of

gratuitous and insignificant warnings and allow to stand the Utah

- ~ . le? ~“JaIAN . c c ~ ~ Sma niac _

Court of Appeals’ decision that Mr. Sampson’s equivocal request f

— = 7 + | 7 ; . _ - Co AoC e ‘oo —— oe } ° _

counsel required clarification to assess his desires; and without

o a ae i an a ia + - ON -- ) ‘Wel-tatel’ ~ . ION Ft luv

that clarification, statements and evidence subsequent]

~ ) -~o Ana - 7 } -~ > . ~t a5 ~ ~eri) > y co) a - ano

violate constitutional strictures requiring exclusion of the

“oO e ¢ 2 5 ~

evidence. Sampson, 808 P.2d at 1112

2. The request for counsel in Kelsey was unequivocal. Nonetheless,

the body of law regarding equivocal requests for counsel stems

directly from Miranda and Roberson, which both indicate that when a

Suspect’s right to counsel is indicated in any manner that the

Edwards’ line of cases is accessed and controlling. Smith v.

Illinois, 469 U.S. 91 (1984) (indicating that the only difference

between unequivocal and equivocal requests for counsel is that

police must cease questioning if counsel is unequivocally invoked,

and must clarify before continuing interrogation if equivocally

invoked).

The final reason this Court should not grant the State’s

petition on its asserted point II is because no conflict exists

between the circuits as claimed by the petitioner. The State of

Utah asserts that Davis v. Allsbrooks, 778 F.2d 168 (4th Cir. 1985),

conflicts with the Tukes v. Dugger position outlined above.

avis v. Allsbrooks, however, deals with a much narrower question of

whether the reading of Miranda warnings to a suspect creates

custody. fre F.20- Bt. if2u The Allsbrooks’ court analyzed that

sltion, ruling that the isolated act of reading Miranda warnings

» Y + 7 . _ + ~ + _ o as T A ei mk =

4 suspe loes reate custody. Id. As such, the Allsbrooks

= ier r r tT inconsistent th Tukes v Duaqager S a7 d

1¢ 1sion 1 in iIsisten with Tukes v. Duqger as clalme

etit & act permits, for example, the Supreme Court

f Alabama n £ arte mer t is n T V Duqager for a

_ ~&-a-

I«a-y = ~ ~ y > r - r ; . i he , . es oh + am _- ca) cr >, 7

ling re jniZ1ing a! Lnv ation f righ Ca sunsel while

> . , + 7

temporane J : r kK in a footnote to

; that tod t ; 11d s 4 t é Ex Parte Comer,

wil, J +4 it page 3 and page

+ > . . +} = s 2h } . wow + -

he above reasons, his irt should not grant the

+ l= > = oe 5 ~ _ - a } — YT Y Th _-T— :

ate’*’sS petition on its asserted point II The question is not

I I j

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pr erly be r é Surt; the appellate court decision 1s correct

~ = - ~ - : r +7 - ~

and > stent wit ompetent case iW and no genuine conflict

OQ 7 Tv J Ps + l -

in point III of its petition, the State of Utah requests

this Court to review the Sampson opinion to clarify which of three

hould utilize to analyze equivocal requests for

counsel. state’s petition at pages 16-17. This observed tnat

three standards existed to examine claims of equivocal requests for

counsel in Smith v. I]linols, 469 U.S 91 (1984 but r ned fr

selecting ne r tne vY1Lew ; T t apDproprilat ne t

identified the three tandard is l i J t ning t ease

\¥ any r¢ yue .? + . r¢ f ’ F. > ] ‘ ie f ‘ } ah aa }

[Ta lar i ‘ lar + ¥ » . 1) , + . y ‘ . + 1¢ tern ‘ wh + er + h;¢

rerers e ttl jger tne I Int ft insel ina yuUest

lesigned t larify a ; equ ; tat ent r De! tte

ar | " nrorry yar . r+ ‘ + > -atr; > _y ‘

ind n in ja

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Cou! f Appea Ke ed below 11 in be affi1z

regardless f whict standard 1S applied me Iq at ) Tr lrst

Standard requires all qué loning ¢t ease upon any request r

reference ¢t >counsel. Mr Amy n’'s statement responding t the

Miranda warnings was, "Well, uh, should I have a lawyer, I meal

well, I’m really not worried about anything, it’s just

that... ." Sampson, 808 P.2d at 1102. This statement would meet

the first standard as the statement by Mr. Sampson i rererence t

counsel which fits within the broad language allowing any request or

reference to Suffice. Because questioning did not completely cease

after this reference, standard number one would require affirming

the Utah Court of Appeals’ opinion.

The second standard would similarly require the appellate

court’s decision to be affirmed. Mr. Sampson’s statement, noted

above, fits within a threshold standard of clarity for references to

counsel triggering the right to counsel because it is of a nature

equal to or surpassing similar statements or references which a

majority of courts have identified as sufficient to invoke the fifth

amendment right to counsel. Other statements found to be equivocal

invocations of the right to counsel are: "Maybe it would be good to

have a lawyer?" United States v. Prestigiacomo, 504 F.Supp. 681

(E.D.N.Y. 1981); “Why should I not get an attorney?" United

States v. Cherry, 773 F.2d 1124 (5th Cir. 1979); “Maybe I should

have an attorney." Maglio v. Jago, 580 F.2d 202, 205 (6th Cir.

1978); "I had better talk to a lawyer." United States v. Clark, 499

F.2d 802, 805 (4th Cir. 1974); "Might want to talk to a iawyer."

United States v. Fouche, 776 F.2d 1398, 1404 (9th Cir. 1985); "I

would like to have a lawyer, but I’d rather talk to you." Nash v.

Estelle, 597 F.2d 513, 516 (5th Cir. 1979); “Do you think I need an

attorney?" State v. Smith, 661 P.2d 1001, 1003 (Wash. App. 1983);

and "When do you think I’ll get to see a lawyer?" Hall v. State,

326 S.E.2d 812, 818 (Ga. 1985). See, also, Sampson, 808 P.2d at

1108-09 (additional cases cited therein demonstrating threshold

eguivocal references to counsel similar to that made by Mr. Sampson).

Smith v.

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—— |

Counsel

The Utah Court of Appeals explicitly held that the police

failure to clarify the equivocal request for counsel made by

Mr. Sampson was an error of constitutional magnitude, a violation of

the fifth amendment. mpson, 808 P.2d at 1112 (direct appeal

portion of the opinion) and at 1114-17 (rehearing portion of the

opinion). Petitioner raised this claim as a new matter on rehearing

before the Utah Court of Appeals. Jd. at 1112. The Court of

Appeals rejected the claim because the State of Utah confused the

issues by relying on technical Miranda violation cases and right to

silence cases to make its point. Id. at 1113-14 (citing, Oregon v.

Elstad, 470 U.S. 298 (1985); and Martin v. Wainwright, 770 F.2d 918

‘llth Cir. 1985), cert. denied, 479 U.S. 909 (1986).

The appellate court distinguished these and other cases

cited by the State of Utah as factually and legally distinct from

the Sampson case. Sampson, 808 P.2d at 114-15 nn. 24-25. The

analysis and reasoning of the Utah Court of Appeals is detailed and

sound. The challenge by the State of Utah in its petition does not

address the court’s conclusions because it neglects the elevated

position of the right to counsel. This Court has explained the basis

for treating this right with more importance.

The rule in Miranda .. . was based on this

Court’s perception that the lawyer occupies a

critical position in our legal system because

of his unique ability to protect the fifth

amendment rights of a client undergoing

custodial interrogation. Because of this

special ability of the lawyer to help the

client preserve his fifth amendment rights once

the client becomes enmeshed in the adversary

process, the Court found that "the right to

have counsel present at the interrogation is

indispensable to the protection of the fifth

amendment privilege under the system"

established by the Court

Arizona v. Roberson, 486 U.S. 675, 682-83 n.4 (1988) (citing,

Michael , 442 U.S. 707, 719 (1979)).

[he Roberson Court, citin 1chigan v. siey, 423 |

96, 101 nn. 19 , Lurther Larified the existence of the

iistinct nm between a suspect’s decisi co cut off questioning

Phe@e, FIiGnt t é é ind a request for assistance of counse

486 | act sf wi eM ey nela tnat L1ce must immediately

cease Tne nt rr Jat I e the Int t s1lier i peen asserte

that r er tt I t resu mnterrogat n after the

passage of a jnit int ¢t er la after pr iding a frest '

of Mir 1ndada ~ 1 + it ne I De I bg oP r w €

rejected that s ' ra 1 t request for the riacht ¢t

que + , + + ‘ > + t - ‘ 7 r +

Edward Ar i j that t roga

immediately ease a t e € rfte in extended pez

Or time and eve wit ew Miranda wa ngs uniles inqd unt1ll The

att yrney LS pr , l¢ j > ale’ pé + ° + tho yue > } Nir y

Rober ra 4 it

These iSé lify the nstitutional nature f he

violation in Samy nm and elucidate why a right to counsel case or

technical vi ition case, like regqon v. Elstad, irc in v.

Wainwright and the other 1ted by Petitioner, are insufficient

lfy granting the petition a urged by the State. The Utah Court

of Appeals’ analysis and holding withstands the continued assertion

by the State that the violation was technical only. This Court

should deny the State of Utah’s request regarding point IV of its

petition. The exclusionary rule is properly applied to this case.

CONCLUSION

For these reasons, the petition for writ of certiorari

sd this _~— day of JAnuary, 1992.

ANDREW A. VALDEZ

Attorney for Respondent

ounsel of Record

[i J P A 7 rt

— 4 ms

ELIZABETH A. BOWMAN

Attorney~f

‘RICHARD G. UDAY / |

Attorney for Respgndént

hate

rom

2. i

bl paiah Queropese le tied

1100 Utah

for Elm simpiy said at the end of the

sentencing hearing: “Your Honor, just for

the purpose of the record, may we express

our objection to the sentencing so we may

be able to preserve that for purposes of

appeal?”

The only exception to the rule that objec-

tions need to de timely and specific in order

to be considered on appeal is if the alleged

error constitutes “plain error.” Utah

R.Evid. 103(d); Whittle at 821; see State v

Eldredge, 773 P.2d 29, 35-36 (Utah), cert

denied, 493 US. 110 S.Ct 62, 107

L.Ed.2d 29 (198S) (detailed analysis of Utah

R.Evid. 103(d)). In order for an error to be

“plain,” an appellate court must find that it

3 \ ,

should have Deen odvious to the tnai court

: ; aes

that it was committing error Eldredge at

Q5 We hav amined the records of t}

do. We have examin d the records of the

sentencing hearmng and the arguments of

, W . “TT 1+

both parties. None of the errors cited mse

to the level of “plain error

"r") #*

HALI J., and STEWART

T > v TIMMERY

DURHAM a IMMERMAN, JJ

San

f rry nuweee -

eS eign

lass

TAaTY f , >) if A |

STATE of Utah, Plaintiff and Appellee

Carlos R. SAMPSON, Defendant

and Appellant.

No. 890327-CA

Court of Appeals of Utah

Defendant was convicted of murder

Judgment was entered in the Third District

Court, Salt Lake County, David S. Young,

J. Defendant appealed The Court of Ap

peals, Orme, J., held that (1) defendant

was in custody at ame he made inculpatory

808 PACIFIC REPORTER, 2d SERIES

statements, so as to be required to be given

proper Miranda, warnings; (2) defendant

had not waived right to be represented by

attorney when he stated to officer adminis-

tering polygraph test that “should I have a

lawyer, I mean * ° * I'm really not worried

about anything, it is just that °° °”; (3)

police did not achieve clarification of equiv-

ocal request for counsel by repeating Mi-

randa warnings; and (4) police violation

did not constitute mere technical failure to

comply with Miranda rules, but was a

Fifth Amendment violation requiring sup

pression of confession and related evidence

Aftirmed

1. Criminal Law @1158(4

In de

termining whether Miranda

warnings were properly given, appeals

court does not accord any particular defer

ence to tmal court’s conclusions, although

coucned

them for

Dut rather reviews

2. Criminal Law €517.2(3

Defendant in murder case had been

subject to custodial interrogation and was

enttled to proper Miranda warnings at

time he confessed to having ldlled his

daughter; police had focused on him as

perpetrator, to exclusion of other possibili

tes, almost from tme he first reported

Gaugnter as missing, and pnmor to state

ment defendant had been subjected to accu

satory questions. U.S.C.A. ConstAmend

3 Criminal Law #414

State has heavy burden to establish

both that defendant understood his Mi

randa mghts and that he voluntanly

waived them. U.S.C.A. ConstAmend. 5

4. Criminal Law €412.2(5)

Defendant in murder case did not

knowingly and intelligently waive Miranda

nights by stating, pnor to submitting to lie

detector test administered in police station

and after receiving Miranda warnings,

°* I'm

really not wormed about anything, it is just

that “should I have a lawyer

that ; Only response admunustrator

given

ndant

ed by

minis-

iavea

orned

’

2qulv

g Mm

lation

ire to

Vas a

sup-

lence

‘anda

peals

jefer

iough

yews

whey

- =

— ta

+. £

» tee

A teh

STATE v. SAMPSON

Utah 1101

Cite as 806 P.2d 1100 (Utah App. 1990)

of test was allowed to make following that

statement was clarification as to intent of

defendant, and instead of seeking clarifica-

tion administrator stated “okay, if you are

not worried about anything I would say

that is fine.” U.S.C.A. ConstAmend. 5

On Petition for Rehearing

5. Criminal Law #412.2(3, 4)

Repetition of Miranda warnings fol

lowing defendant’s equivocal request for

counse!, did not authonze police to conunue

interrogation of defendant; equivocal re

quest was required to be treated by police

and analyzed by courts as though it were

an unambiguous request for counsel, unt

such time as it had been properly clarified

and shown to be otherwise U YA

Const.Amend. §

6. Criminal Law €412.2(4 517.2(1), 537

P e response Ww 1urder suspect

eaquivoc request for counsel, repeuton o!

U al request [or insel, peut I

Miranda warning and conunuaton of in

terrogation, was not a mere technical viola

tion of Miranda rules; it constituted a

f+} _ sary A? + ’ » » . — .

Fifth Amendment wmolaton requinng sup

pre n of confession and demvauve evi

dence 4 ConstAme

Andrew A ¥ alde Biuzadet 4 Bow

lan, argued, and Richard jay, argued,

alt Lake Legal Defender Ass n, salt Lake

Cit for defendant 1 annellant

LOF 1@ 1 lant and appeldadr

rv i va am SLA A st i

Charlene Barlow, argued, Asst tty e

T ’ i ai ) f > >

alt Lake ( for plainuff and appelee

y rT. ) ‘ )

Be fore Diladiavyu si N W O¢ anc

—_ ,

UN yf do

OPINION

=—T '

ORM Judge

—

Defendant appeals his convictor for

criminal homucide, murcer in the second

1. These purposes were again repeaicd during

the exam. with even more specificity Later in

the exam, Sgt Elliot stated

Okay, good, okay, uh, at the beginning of the

test | told you what the things were thal we

needed to show. Number one is that you did

not arrange with anyone to take the child but

degree, a first degree felony in violation of

Utah Code Ann. § 76-5-203 (1990) We

reverse and remand for a new tnal.

On November 24, 1986, at approximately

10:30 p.m., defendant entered a 7-Eleven

store in Salt Lake County and told the

clerks that his daughter had been kid-

napped. He asked them to call the police,

which they did

Deputies from the Salt Lake County

Sheriff's Office responded. Defendant in

formed them that his daughter had been

abducted from his truck. He gave them a

description of his daughter and a photo

graph. The officers investgated the ai

leged kidnapping until 4:00 a.m. At some

point dumng the evening, defendant wa

informed the police did not believe his sto

ry. The officers asked defendant to come

to headquarters the following morning for

a polygraph examination He agreed

At approximately 10:30 a.m. on Novem

ber 25, defendant armved at police head

quarters. He was met by the polygrap!

examiner, Sergeant Elliot, who had been

briefed about the events which occurred on

the prior evening. Defendant was escorted

to a small interrogation room, hooked up to

a polygraph machine, and nstructed about

how polygraph machines worked Sgt. |

liot then explained the purpose for giving

defendant the test. He said

When we walk out of here we ought t

be able to tell the detectives Carlos 1s

truthful when he says the child was tak

en out of the truck, he had not prear

ranged with anyone to take the child

Uh. also, Carlos is not involved in the

death of the child if the child is, m fact,

dead. And, uh, those are the two things

that we will accomplish today

After explaining to defendant the pur

pose of the test, Sgt Elliot gave defendant

the Miranda warnings. He began by stat

ing: “Because you are in the cop shop

that you haven't got someone taking care of

her. she is not hidden out and you are not

doing this to depnve Antoinetie visitauon ol

the child. And, uh, secondly, you did nothing

to injure the child and you, and if she in fact

is not alive, did not cause her death, nghi?

2 @. $4

te.

;

roe

;

‘——— ree eee

— ee

“;

> Re

“

;

stacy **

r #

Shave a:

a ey Pad %

wert Ce:

tne

bA NS 2 78 <a}

pow

lal

. ay

EZ.

nea

1102 Utah

there is no doubt in your mind that this is

the police station and, uh, because you are

in taking a polygraph from a law enforce

ment agency I must advise you of your

rights again.”? After reading defendant

each of his rights, the following exchange

ensued:

Elliot: Okay, having these rights in mind

do you wish to talk to me now

Sampson: Well, uh, should I have a law-

yer, I mean, well, I'm really not worried

about anything, it is just that

Elliot: Okay, if you are not worried

about anything I would say that is fine

let's go ahead and proceed. Let’s get

this thing done and get it over with and

see what we can do

Sampson

> 1wson

I’m willing to get it over with

Defendant then read and signed a form

listing his Miranda rights and indicating

his willingness to take the polygraph test

During the polygraph examination, Sgt

Elliot asked defendant whether he ar

ranged the disappearance or caused the

death of his child and whether he knew

where she was hidden? He asked defen

dant this series of questions four times

To the question concerning where his

daughter was hidden, defendant responded

in the negative each time and each time the

polygraph suggested a deceitful response

After the last set of questions, Sgt. Elliot

informed defendant about the test results

He asked defendar: why his response to

the question concerning whether he knew

where his daughter was hidden appeared to

be false. Defendant said he thought

maybe the child's mother had done some

thing with her

After concluding the examination, Sgt.

Elliot and defendant went to find Salt Lake

County Sheriff Pete Hayward. Sgt. Elliot

told Sheriff Hayward about the test re

2. It is not clear from th vecord why Sgt. Elliot

stated that he had to advise defendant of his

rights “again.” It is clear, however, thai the

first and only Miranda warnings defendant re

ceived prior to his formal arrest were given by

Sgt. Elliot at the outset of the polygraph exami

nation.

3. The specific inculpatory question, asked dur

ing the examination were

1) Have you caused the death of Miyako

808 PACIFIC REPORTER, 2d SERIES

sults. He told him that he believed defen-

dant had been untruthful and informed hirn

that defendant had been “Mirandized,” but

apparently did not acquaint the sheriff with

the particulars of defendant's responses af-

ter his rights had been read to him.

Sheriff Hayward then returned with de

fendant to the polygraph room for further

questioning. He did not give defendant the

Miranda warnings.‘ He informed defen-

dant that there were inconsistencies in his

story and that he did not believe defendant

was telling the truth. He then asked de

fendant whether he had injured his daugh-

ter. Ultimately, defendant stated his

daughter was dead and that he could show

the police where she was located

Defendant accompanied Sheriff Hayward

and another deputy to a dumpster in Amer-

ican Fork where his daughter's body was

located. After retrieving the body, the of:

ficers placed defendant under arrest and

returned him to Salt Lake City. When the

officers again met with defendant, defen-

dant was read his Miranda rights. He

agreed to talk with the investigating offi-

cer, who thereafter questioned him con-

cerning the circumstances surrounding his

daughter’s death

Prior to tral, defense counsel filed a

motion to suppress all statements made by

defendant during and after the polygraph

examination on November 25, 1986, and all

evidence derived as a result of those state

ments. Counsel argued that the police offi

cers had violated defendant’s Miranda

nghts by continuing to question him after

he made an equivocal request for counsel.

The trial] court denied the motion

In support of its decision to deny defen-

dant’s motion to suppress, the court stated

in pertinent part:

2) Do you know where Miyako is hidden

now?

3) Have you arranged the disappearance of

Miyako?

4. It is not entirely clear why the sheriff did not

give defendant bis Miranda warnings. Appar

ently, however, he relied upon Sgt. Elliot's ex

planation that defendant had been “Miran-

dized.”

STATE v. SAMPSON Utah 1103

Cite as 806 P2d 1100 (Utah App. 1990)

red defen-

. i f , } ,

med him The court finds, first, that as you have evidence resulting from the police interro-

ized,” but agreed, the standard of evidence must be gation. At the conclusion of the tnal, the ii

eriff with a a preponderance of the evidence’ to es- jury found defendant guilty of second de

. . }

yonses af. la tablish the voluntariness of the interro- gree homicide. He was sentenced to a

him. —- gation and waiver term of five years to life at the Utah State

Yaar ‘ae

| with d = 44 Court finds that the defendant clearly Prison

{ e A ’ |

. ’ 4 ' " rep 4 > j |

: ..° oe , th a<¢ ving th . ™ F

ndant the > 2 what he was waiving, that there is now on appeal, but his primary contento:

- : +h record to show ¢t the r “@ , tr die i

2d defen- 12 ing in the record to show that the poli that the court committed prejudicial error ’ yy

les in his Ps wh aid anything Or acted in any Wa) ? prop when it denied his motion to suppress i {3

eriy $0 425 W ynsutule any Kind i coer caus foal ? r<p a >mand mn th

lefendant “3 “6 ~ninsasag as sponte: iat? nag aga AY

, ed cion* in this matter so as to cause te issue, we need not address Wine oer :

isked de- ee Iafanden?t nat ta f nderetas hy , :

is daugh = ate . OH ivy uncerseand raised Dy defendan 18)

n ¢4 ’

Vie mghts and to leave him in a posit a

ated his +a. - (1] Neither party ha . qi

» aed where Ne was acting a coerce rt or . se:

uld show San, standard of review f appe A ity.

Py wa a.

os é t ngn it.

cee.’ . e tria P ; he

Hayward ¥ eae oe wes By Ses ee ;

P Ss < i ‘ A A err » the waiver ; efendant's Ver ‘

in Amer fe . ne that the anguag Ws a} q ‘ : ‘ he ; ait

y | nave a iawyer nea ve rea ey

; : a essentially undisputs fact n part 4

rust and ‘a s not sufficient te cause the ~ ahd Se Th

. welencanw presser juest is [ Aw rey ~ 7s ©

Vhen the ‘ | t ) erned as t he clair r ar 4t

ad adie incer 3 1 Pp ferror sta heal

t, defen ." | suggestion that the defendant wishe san 4

_ ao 3 $ nsisver 4 -!

its He 7) cla aA mgnt e paner ss . trial c ° ‘

, 4 genera } ala Wa cour ‘

ing offi a ] ais i re was eo by ; 4 ; / .

ay os asec um } ed fac rese

um con i give Ss ad is Ww 3 t

h sy questions of law appea hverst

ding ILS yp | requests for the se f F Ce. R ,

Pe Equities, Inc. v. Amencan Sav. &

.¥ the w er f ‘ ‘ - ;

~ “ . . . Ass } d st ah UCLA

" : 1 further i e for * Q ;

; , i encer {awke

filed a

made by

ilygraph

, and all

se State

lice of

firanda sent ‘

um after A five-day jury tna! w held epten People v. Russo, 148 VCal.App.id 11

counse! ber 1987. Having lost his mot to $ Cal. Rptr. 466, 468 yg where Mira '

4 f

press defendant sought and obtained a Warnings and ensuing discussion were rt “

7 defe: continuing objection to the admussion o! corded, facts deemed undisputed and appe

t stated 5. At least one Utah case has recognized “prey 479 » 187, 107S 1S, $23, 93 LEa a

dGerance of Whe evidence as the approonatic (19864 ’

standard for determining the voluntanness " '

st hidden waiver of Miranda mghts. See Siaie v. Moore 6 The court's comment on coercion represents a

97 P2d 233. 236 (Utah 1985 The p j

6 Pld 2 - 2 preponace bat of an oversiatoment in new Of Murandea 3

. nce standard is difficult to square with M

rance of an . . . recognition thal custodia) interrogation is c

randa's holding that the state bears a heavy , :

enuy cocrave. See 384 S. at 467, 8 S( a

burden. if counse! was not present, to show a 1624

knowing and intelligent waiver of the defe ;

f did not

Appar

liot’s ex

“Miran

dant'’s Miranda nghts. See Miranda v. Anzona

384 US. 436, 475, 86 SCL 1602, 1628, 1 7. Despite the court's phrascotogy in its remarks

LEd.2d 694 (1966 Nonetheless, the United from the bench, it is apparent from the rec:

that defendant never made any “subsequent re

States Supreme Court has adopted the “prepo

quests” for counsel after his statement to dg f

Elliot

derance of the evidence” test in evaluating

randa waiver questions Loiorado ¥ ores

4 *@

an Lo

1104 Utah

-late court required to “independently as-

sess whether [defendant] knowingly and

intelligently waived his rights”). Thus, we

do not accord any particular deference to

the trial court’s conclusions, although

couched as findings, but, rather, review

them for correctness. Scharf » BMG

Corp., 700 P.2d 1068, 1070 (Utah 1985).

In Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 LEd2d 694 (1966), the Unit-

ed States Supreme Court stated that “the

prosecuton may not use statements

stemming from custodial interrogation of

the defendant unless it demonstrates the

use of procedural safeguards effective to

secure the pnvilege against self-incrimina-

tion.” Jd at 444, 86 S.Ct at 1612. One of

those procedural safeguards is a warning

that the defendant has the right to an

attorney dumng custodial interrogation

Id Moreover, the Court noted that if de

fendant “indicates in any manner and at

any stage of the process that he wishes to

consult with an attorney before speaking

there can be no questioning.” Jd. at 444—

45, 86 5.Ct at 1612. Finally, when custodi-

al interrogation continues without the pres-

ence of a defense attorney and damaging

evidence results from the interrogation, the

state has a heavy burden to show that the

defendant knowingly and intelligently

waived his Miranda nghts. /d at 475, 86

We must address two questions in this

appeal. First, we must determine whether

defendant was subject to “custodial inter-

rogation” at the tme he made his incrimi-

nating statements. Second, assuming cus-

todial interrogation, we must determine

whether defendant requested, or knowingly

and intelligently waived his right to, coun-

8e |

CUSTODIAL INTERROGATION

(2) Initially, defendant claims the state

failed to raise below the issue of whether

there actually was a “custodial interroga-

tion” and thus should be precluded from

arguing on appeal that there was not. See

generally State v. Marshall, 791 P.2d 880,

885-87 (Utah CtApp.1990). Though we

agree the state did not dwell on the issue,

808 PACIFIC REPORTER, 2d SERIES

it was sufficiently raised at the suppression

hearing to be preserved for this appeal.

We note, however, that the trial court did :

not base its denial of the motion to sup-

press upon the lack of custody nor intimate

any doubt that the colloquy between Sgt.

Elliot and defendant occurred in conjunc-

ton with a custodial interrogation. In-

stead, it concluded that defendant was in-

formed of his rights, understood his rights,

and voluntarily waived them—conclusions

which would be irrelevant if the court

thought there had been no custodial inter-

rogation.

In Miranda, the United States Supreme

Court defined “custodial interrogation” as

“questioning initiated hy law enforcement

officers after a person has been taken into

custody or otherwise deprived of his free

dom of action in any significant way.” Mi-

randa v. Arizona, 384 US. 436, 444, 86

S.Ct. 1602, 1612, 16 LEd2d 694 (1966).

The Court expanded on this definition in

Oregon v. Mathiason, 429 US. 492, 37

S.Ct 711, 50 LEd2d 714 (1977) (per cu-

mam). “Miranda warnings are required

only where there has been such a restric-

hon on a person’s freedom as to render him

‘In custody.”” Jd at 495, 97 S.Ct at 714.

Later, in California v. Beheler, 463 US.

1121, 103 S.Ct. 3517, 77 LEd.2d 1275 (1983)

(per curiam), the Court stated that “the

ultimate inquiry is simply whether there is

a ‘formal arrest or restraint on freedom of

movement’ of the degree associated with a

forma] arrest.” /d at 1125, 103 S.Ct at

3520.

Moreover, the United States Supreme

Court has indicated that the test is an

objective one, ie., that “the only relevant

inquiry is how a reasonable man im the

suspect’s position would have understood

his situation.” Berkemer v. McCarty, 468

US. 420, 442, 104 S.Ct 3138, 3151, 82

L.Ed2d 317 (1984). See, eg., Hunter v.

State, 590 P.2d 888, 895 (Alaska 1979) (The

question is not whether the particular de

fendant considered himself in custody, but

whether a “reasonable person [under the

same circumstances] would feel he was not

free to leave and break off police question-

pe SERS oe

Sty S09 Gi cee ee’s

‘

Ppression

iS appeal.

court did

n to sup

¢ intimate

veen Sgt.

conjunc-

ion. In-

t was in-

us rights,

nclusions

he court

lial inter-

Supreme

ation” as

orcement

iken into

his free-

ry.” MM

444, 86

i (1966)

nigvion in

492, 97

(per cu

required

» restmc

ider him

at 714

163 U.S

'5 (1983)

at “the

there is

edom of

1 with a

S.Ct. at

jupreme

t is an

velevant

in the

erstood

rty, 468

151, 82

nler v.

’9) (The

ular de

dy, but

jer the

was not

lestion-

ing.”); People v. Algien, 180 Colo. 1, 501

P.2d 468, 471 (1972) (en banc).

The Utah Supreme Court has identified

several key factors to consider : order to

determine when a defendant

who has not been formally arrested is in

custody. They are: (1) the site of inter-

rogation; (2) whether the investigation

focused on the accused; (3) whether the

objective indicia of arrest were present,

and (4) the length and form of interroga

ton

Salt Lake City v. Carner, 664 P.2d 1168,

1171 1983). Another factor which

we find pertinent to our analysis was rec

ognized by our Oregon counterpart in

State v. Herrera, 49 Or.App. 1075, 621

P.2d 1209 (1980). That factor is (5) wheth

er the defendant came to the place of inter

rogation freely and willingly. /d, 621 P.2d

We now apply these five factors

(Utah

1919

at igic

along with the objective standard adopted

in Berkemer, to the undisputed facts in

this case

A bref mention of factors (1), (3) and (5)

is sufficient because we find them relatve-

ly “neutral.” Concerning factor (1), the

site of interrogation was the police station

Station-house questioning lends itself to a

a concept which Sgt

finding of custody,

Elliot recognized in his “cop shop” mwtro-

ductory remark, although that fact alone is

Mathiason, 429

Considenng

not conclusive. See, ¢.9.,

U.S. at 495, 97 S.Ct at 714

factor (3), defendant was apparently not

securely restrained or told that he was

under arrest until after his daughter's body

was discovered. However, it is pertinent to

note that he was not specifically informed

of his freedom to leave ® and that once the

polygraph examination started, he was re-

strained in the limited sense that he was

hooked to the polygraph machine.’ Turn-

ing to facuor (5), the defendant went volun

tarily to the police station after receiving

an invitation to do so. The fact that he

went voluntarnly, however, does not mean

& Under certain circumstances, even defendants

who are told they are free to leave will none

theless be held to have been subjected to cusio-

dial interrogation. See, eg., Umted Siates v.

Lee, 699 F.2d 466, 467-68 (9ih Cir.1982) (per

curiam

STATE v. SAMPSON

Cite as 808 P2d 1100 (Utah App. 1990)

Utah 1105

he was free to leave during the entire

remainder of the interrogation.

The two factors which conclusively tip

the scale and persuade us that defendant

was in custody are factors (2), the focus of

the investigation, and (4), the form of the

interrogation. The interplay of these two

factors at the time defendant made incnmi-

nating statements would lead a reasonable

person to believe that he was not free to

leave

Concerning factor (2), the state essential-

ly concedes that the investigation in this

ase had focused exclusively on defendant.

Before the conclusion of the evening when

defendant reported the fictitious kidnap

ping, officers had informed defendant that

they did not believe his story. Asa result

of their disbelief, they requested defendant

to return the following morning for a poly-

graph test Nothing in the record sug

gests other suspects were sought or ques-

tioned, or other leads pursued, in the mean-

while. The qnestions asked during the

polygraph examination clearly indicate a

strong suspicion that defendant had kad-

napped or killed his own daughter. It is

obvious from these facts that defendant

was the prime, if not exclusive, suspect of

the police investigation. A reasonable per

son under the circumstances would surely

so have concluded, especially given the ex

pressed disbelief at his story

Finally, factor (4) weighs heavily in favor

of a determination of custody. Utah courts

have placed a great deal of emphasis on the

form of the questioning in these types of

cases. As long as questioning remains

merely investigatory, courts have not

found custody. See, eg., State v Kelly,

718 P.2d 385, 391 (Utah 1986). However,

when investigatory questioning shifts to

accusatory questioning, custody is likely

and Miranda warnings become necessary

Carner, 664 P.2d at 1170. See also Kelly,

718 P.2d at 391. The change frum mvest-

9. According to the transcript of the polygraph

examination, the polygraph machine was at-

tached to defendant by two tubes encircling his

trunk, finger plates on his ring and index fin-

gers, and a blood pressure cuff on his nght arm.

— cone +

ee ee eee se ee

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1106 Utah

gatory to accusatory questioning occurs

when the “police have reasonable grounds

to believe that a crime has been committed

and also reasonable grounds to believe that

the defendant committed it.” Carner, 664

P.2d at 1171. See also Kelly, 718 P2d at

391.

Assuming, without deciding, that the

polygraph examination itself was merely

investigatory,'® we find that the question-

ing became accusatory when Sgt. Elliot and

Sheriff Hayward determined that defen-

dant had lied on the exam. The officers

knew prior to the polygraph exam that a

crime had been committed. They suspect-

ed kidnapping and possibly even murder

Moreover, they clearly suspected defendant

as the perpetrator of the crime. The poly-

graph exam results merely confirmed their

Suspicions. Knowing the suspicions of the

police and then being confronted with the

polygraph exam results, a reasonable per-

son in defendant’s position would not have

considered himself free to leave at that

time.'' Thus, we hold that, at least as of

the time of Sheriff Hayward’s questioning

of defendant, defendant was subject to cus-

todial interrogation and entitled to proper

Miranda warnings

This case is similar to, and the result we

reach consistent with, the Colorado case of

People v. Algien, 180 Colo. 1, 501 P.2d 468

(1972) (en banc). In Algien, the defendant.

10. In view of the result we reach, we need not

decide in this case whether the polygraph exam

inauion as such was accusatory interrogation

and whether defendant was in custody from the

inception of the exam. We note, however. that

numerous courts have leaned toward finding

such examinations to be custodial, a view which

seems tO Command majority support and to be

well-reasoned. See, eg, State v Wright, 97 NJ.

113, 477 A2d 1265, 1269 (1984) (noting that

strict Miranda-type analysis is typically applied

to polygraph confessions); Commorwealth vy.

Bennett, 439 Pa. 34, 264 A2d 706, 707 (1970)

(state's suggestion that defendant was not in

custody for polygraph was “attempt to have

{court} submerge [its] intelligence”); Scate y.

Faller, 88 S.D. 685, 227 N.W.2d 433, 435 (1975)

(“situation a lie detector test presents can best

be described as a psychological rubber hose”);

Creeks v. State, $42 S.\W2d 849, 851 (TexCr.

-- App.1976) (where investigation has focused on

defendant, Miranda warnings required before

polygraph); People v. Carter, 7 Cal App.3d 332,

88 Cal.Rptr. 546, $49 (1970) (“Questioning dur-

808 PACIFIC REPORTER, 2d SERIES

along with other individuals, was suspected

of arson. 501 P.2d at 469. He voluntarily

submitted to a polygraph examination. Jd.

At no time was he advised of his Miranda

rights. /d, 501 P.2d at 470. Prior to the

examination he was informed that the pur-

pose of the test was to determine his in-

Id, 501 P.2d at

volvement in the fire.

469-70. He was then asked questions con-

cerning his guilt /d The exam was given

three times and each time the test indicated

his negative responses were not truthful.

Id, 501 P.2d at 470. At the conclusion of

the test, he was confronted with the opin-

ion that he was lying and, after discussing

the matter, defendant confessed. /d.

The trial court in Algien found that once

the officers concluded defendant was lying

during the exam, the Suspicion of guilt

focused on him and the officers should

have read him his Miranda nghts. Jd

The Colorado Supreme Court agreed with

the trial court and held that “a reasonable

person would with logic conclude that he

could not leave the premises of his own

free will but would be detained for formal

arrest” /d at 471. Consequently, it af-

firmed the decision of the trial court to

suppress defendant’s confession.

Other courts have applied an Algien-type

analysis to post-poiygraph confessions.

See, ¢.9., State v. Wright, 91 NJ. 113. 477 «

ing the course of a lie detector test certainly

qualifies as a form of custodial interrogation.”)

overruled on other grounds, 6 Cal3d 441, 492

Pl2d 1, 99 Cal-Rptr. 313 (1972). Bur see eg.

Whalen v. State, 434 A2d 1346, 1352 (Dei. 1980)

(appearance at the police station for the poly-

graph test demonstrates a waiver of his Miranda

rights”), cert. denied, 455 US. 910, 102 S.CL

1258, 71 LEd2d 449 (1982); People v Bailey,

140 A.D.2d 356, 527 N.Y S.2d 845, 847-48 (1988)

(willingness to aid in investigation demonstrat.

ed that polygraph not custodial).

11. The state cites testimony to the effect that

defendant did not consider himself under arrest

even after he was formally arrested, suggesting

this demonstrates that defendant could not have

believed he was in custody when he first con-

fessed. This evidence is at most a commentary

on defendant's acumen. Under the objective

“reasonable person” test, defendant's subjective

belief about custody is not relevant. Berkemer

v. McCarty, 468 US. 420, 442, 104 S.C 3138,

3151, 82 LEd 2d 317 (1984).

STATE v. SAMPSON Utah 1107

Cite as 808 P2d 1100 (Utah App. 1990)

aspected A.2d 1265, 1269 (1984) (“When defendants polygraph examination? because no con-

luntarily are not advised of their Miranda nghts, or fession was elicited until after the exam

ion. Id. do not properly waive (fq, confessions was completed and the sheriff summoned.

firanda elicited after a polygraph test are typically [t is sufficient to conclude that, Sgt Elliot

F to the suppressed.”); People v. Harris, 128 having determined defendant was lying in if

the pur- A.D.2d 891, 513 N.Y.S.2d 817, 818 (1987) 4, exam, Miranda warnings were neces-

: his in- (mem.) (confession admissible because de- sary before further questioning could prop-

P.2d at fendant appeared voluntarily for polygraph gin anaiiad

Qns con- test and fully advised of nghts before post- Ss

isgiven ¥* polygraph confession). The rationale of It is clear from the record that defendant i

dicated ; ee these polygraph cases comports with our was not given Miranda warnings between

ruthful. , view of custodial interrogation and thus we the conclusion of the polygraph exam and '

sion of . 3 adopt their reasoning in this case the time he was formally arrested."? Thus, f

1€ Opin- b “9 We need not decide whether defendant unless we find that defendant's Miranda i

cussing * was in custody from the inception of the rights were adequately protected by reason A,

-- S 1

Id. Pe 12. Bur see note 10, supra It is interesting to previously issued Miranda warnings wasranted 3

at once oO note that the polygraph examiner considered an exception to the exclusionary rule How ; h

Miranda warnings al the outset of the polygraph ever, we note that, contrary to the trend in the 43

s lying oa examination to be a necessity. He stated: “Be Fourth Amendment area, courts have declined $ i

f guilt ay cause you are in the cop shop there is no doubt to create a “good faith” exception in the context - a 3

should 4 in your mind that this is the police station and of the Fifth Amendment. United States v. Scaif ' r}

s. ld. “_ un. eget you are in taking & potygrapn trom 708 F.2d 1540, 1544 (10th Cir.1983) (per cunam) ME

d with ol 95 ca bom sihyaee ia age 1 , wie" coves aS (“once a suspect has invoked the right to coun p [}

: f degra, nent ae _ People ¥ Senn, 1% sel. knowledge of that request is imputed to all mas)

sonable ~ A.D.2d 553, 539 N.YS.2d 29, 31 1989) __s law enforcement officers who subsequently deal ar t 4

hat he . = (giving of Miranda nr was anny with the suspect”). See also Arizona v. Rober He

is own J ans ey" orang " caution eae did} not pre son, 486 US. 675, 108 S.Ct 2093, 2101, 100 sas

. clude a finding that (defendant) was not in Pere : e #.!

formal ae custody~™ LEd2d 704 (1988) (implicitly rejecung “good At

; ef a a oe faith” argument), White v. Finkbener, 687 F 2d Y

it af Rg. nile pial <p cea iiienne ital Ml 885, 887 no. 9 (7th Cir.1982) (declining to create a

vurt to a ey See ee ee ae Beem herny exception absent clear indicauion from United ay

eos other reason than that it forecioses the possibdili Scheme Sumveme Com, eanal on ole “it

«: ty a suspect will biurt out a confession after his ge ity si bags = :

a deception has been ascertained but before M: grounds, 465 US. 1075, 104 S.Ct 1433, 79 “yf

n-type ’ randa warnings can be issued. Moreover, as an LEdcd 136 (1984) L 2 } t ‘

ssions o. o @ arm of the state, the police have a responsibility An exceilent treatment of a possible “good rt

3, 477 |e to protect the constututional mghts of the cituuzen faith” exception to the Fifth Amendment exciu ¢

ae ry, and ermng on the side of giving the Miranda Sones ee = found in M. Gardner, The Emerg J

srtainly ig warnings before they are strictly required ad ing Good Fauh Excepnon to the Miranda ‘* ij’

ition.”), =H vances that function, as well as minimizes the Rule—A Crinque, 35 Hasungs LJ. 429 (1984 ty

41, 492 = risk that important evidence will be exciuded Professor Gardner concludes 1

m 22, ee because the warnings were not given carly While there may be reason to doubt the con : ry

‘L.1980) vg enough in the process. stitutional necessity of the fourth amendment : He

¢ poly- , 13. As indicated previously, Shenff Hayward ap ranagreerener ro, oe a pean a a]

firanda Wy - parently relied upon Sgt. Elliot's claim that de lege is uself a consututior P y required exclu !

2 $.Cz. at fendant had been properly “Mirandized™ at the sionary rule. Whereas a fourth amendment be

Bailey, a> commencement of the polygraph exam Al violation occurs at the moment of the unlaw |: P.

i '

(1988) ae though Sheriff Hayward, out of the same abun ful privacy violation, violations of the privi : | Rf

mstrat 7 dance of caution that may have motivated Sgt lege against self-incrimunauion do not occur pep

\ o? Elliot, should ideally have given new Miranda unless and until the government uses the - +: s

& warnings to defendant pnor to interrogating tainted evidence agains: the defendant in a i! :

xt that ne’ him, the earlier warnings would have sufficed criminal proceeding. Although alternauves to AUT.

arrest 7% had Sgt. Elliot elicited a clear waiver of those the exclusionary rule might conceivably be , ty

resting A rights from defendant at that ume. See State v developed to protect fourth amendment priva- Vtg

a have Martinez, 595 P2d 897, 899-900 (Utah 1979) cy interests, no alternative could possibly pro- |

2 con- (the law does not require repetition of Miranda tect the fifth amendment values of maintain {i

entary 2 rights within a short period of time and a con- ing an accusatorial system and respecting the '

jective “ee tinuous sequence of events even though defen- dignity of criminal defendants’ If use of 1.

jective a dant’s status may actually change in the inter compelled self-incriminating evidence is per |;

= im). mitted, the fifth amendment’s protection is j

The state did not argue that Sheriff Hayward’s destroyed. t

“good faith” reliance upon Sgt. Elliot's claim he Id. at 462-43 |:

Rory abet Ae i ete

wy@

50 ic LAG UL Srl 2b aS

1108 Utah

of the exchange at the outset of the poly-

graph examination undertaken by Sgt. Elli-

ot," there was no adequate “Mirandizing”

of defendant before he gave his custodial!

confession. We now examine whether de

fendant validly waived his Miranda rights

at that time.

WAIVER

On appeal, defendant does not argue that

the state failed to adequately inform him of

his Miranda rights. Prior to the poly-

graph examination, Sgt Elliot carefully in-

formed defendant of each of his rights.

Instead, defendant argues that he made an

“equivocal request” for counsel which the

state failed to clarify and, if appropriate, to

honor. It is telling that the state does not

address this issue on appeal, but instead

puts all its eggs in the “no custodial inter

rogation” basket. Nonetheless, because

the state stops short of conceding the point

and in view of its importance, we wil] ad

Gress the issue in some detail

(3] Initialiy we note that, though a de

fendant may waive his rights to remain

silent and to have an attorney present dur-

Ing custodial interrogation, “these waivers

must be both intentional and made with

full knowledge of the consequences, and

the defendant is given the benefit of every

reasonable presumption against such a

waiver.” State v. Fulton, 742 P.2d 1208.

1211 (Utah 1987), cert denied, 484 U.S

1044, 108 S.Ct 777, 98 L.Ed.2d 864 (1988)

See also Brewer v. Williams, 430 U.S. 387.

404, 97 S.Ct. 1232, 1242, 51 LEd2d 424

(1977). Consequently, the state has a

heavy burden to establish both that a de

14. We note that defendant was given a second

set of Miranda warnings after he had informed

Sheriff Hayward that his daughter was dead.

gone with the police to American Fork to re

trieve the body, been arrested, and been re

turned to Salt Lake City. Apparently recogniz-

ing that by that time all the damage had been

done, the state does not argue the second set of

Miranda warnings are of any consequence to

our analysis.

‘ Defendant, on the other hand, argues that

because he had previously invoked his right to

counsel, albeit equivocally; had not been pro

vided an attorney; and had not initiated any

subsequent interrogation with the police, the

fruits of the post-arrest interrogations must also

808 PACIFIC REPORTER, 2d SERIES

fendant understood his Miranda nights and

that he voluntarily waived them. State v.

Velarde, 734 P.2d 440, 443 (Utah 1986).

[4] The state argued below, and the

trial court found, that defendant’s state

ment “Well, ah, should I have a lawyer, I

mean, well, I’m really not worried about

anything, it is just that ...” did not qualify

as even an equivocal request for counsel

which the police had to be concerned about.

We disagree.

In Miranda, the United States Supreme

Court stated: “If [defendant] indicates in

any manner and at Lny stage of the pro-

cess that he wishes to consult with an

attorney before speaking there can be no

questioning.” 384 US. at 444-45, 86 S.Ct

at 1612 (emphasis added). Thus, a defen-

dant’s “request for counsel may be ambig-

uous or equivocal,” Smith v. Illinois, 469

U.S. 91, 95, 105 S.Ct 490, 493, 83 L.Ed.2d

488 (1984) (per curiam), and stil] qualify as

an invocation of Miranda rights.

This court dealt with an equivocal re

quest for counsel in State v. Griffin, 754

P.2d 965 (Utah CtApp.1988). In Griffin,

the defendant stated during interrogation,

“This is a lie. I'm calling an attorney.”

Id. at 966. We held that this statement

“was arguably equivocal.” /d at 969. De

fendant’s statement im this case was less

forceful than that m Griffin. However.

other jurisdictions have found statements

very similar to the one in this case to have

constituted equivocal requests for counsel.

See, e9., United States v. Cherry, 733 F.2d

1124, 1127 (5th Cir.1984) (“Maybe I should

talk to an attorney before I make a further

be suppressed. We agree. In Edwards y. An-

zona, 451 US. 477, 101 SCt 1880, 68 LEd2d

378 (1981), the United States Supreme Court

held that once a defendant has invoked his right

to counsel, statements made without counsel in

subsequent interrogations initiated by the po-

lice, even when pursuant to renewed Miranda

warnings, must be suppressed. /d at 484-87,

101 S.Ct at 1884-86. See also State y. | ore,

697 P2d 233, 237 (Utah 1985) (accused must

initiate conversation). The rule in Edwards ap

plies even more forcefully in a case such as this

where the subsequent interrogation is prompted

by, and designed to explain, information which

has come to the police as a direct result of an

earlier Miranda violation.

‘ights and

State v.

ah 1986).

and the

t’s state

lawyer, I

ed about

t qualify

* counsel

ed about

Supreme

icates in

the pro-

with an

in be no

86 S.Ct

a defen

e ambig

ors, 469

L.Ed.2d

lalify as

ocal re-

An, 754

Griffin,

ogation,

orney.”’

itement

9. De

ras less

Owever,

ements

to have

‘ounse|

33 F.2d

should

further

sv. An

LEd2d

e Court

us right

unsel in

the po-

Viranda

484-37

Moore,

d must

twrds ap-

i as this

ompted

1 which

t of an

STATE v. SAMPSON Utah 1109

Cite as 808 P2d 1100 (Utah App. 1990)

statement.”), cert. denied, 479 U.S. 1056,

107 S.Ct. 932, 93 L.Ed.2d 983 (1987); Unit-

ed States v. Fouche, T76 F.2d 1398, 1405

(9th Cir.1985) (“might want to talk to a

lawyer’), cert. denied, 486 U.S. 1017, 108

S.Ct. 1756, 100 LEd.2d 218 (1988); United

States v. Prestigiacomo, 504 F.Supp. 681,

683 (E.D.N.Y.1981) (mem.) (“maybe it

would be good to have a lawyer”); Cheat-

ham v. State, 719 P.2d 612, 618 (Wyo.1986)

(after being asked if he wanted to talk

defendant responded “Well I don’t care, I'd

like to see a lawyer, too you know’); Ham

§ (Alaska

pel v. State, 106 P.2d 1173, 117

CtApp.1985) (“I’ve got one questior

{and the question is concerning a lawyer

how would I be able to get one, a

People v. Russ 148 Ca

196 Cal.Rptr. 466, 468 (1983

“I don't know if I should have a lawyer

here or what"); State v. Moulds, 105 Ida

ho 880, 673 P.2d 1074, 1083 (CtApp.1983)

(“Maybe ! need an attorney’); Slate

Smith, 34 WashApp. 405, 661 P.2d 1001

1003 (1983) (‘Do you think I need an attor

Porter

ney’). See also United States v

164 F.2d 1, 6 (Ist Cir.1985) (unsuccessf

1 be othe —" aa ¢ . £¢

call to attorney's office in presence of

cer treated as equivocal request for cou!

sel), cert. denied, 481 U.S. 1048, 107 S.Ct

2178. 95 LEd2d 835 (1987); People v

Quirk, 129 CalApp.3d 618, 181 Cal.Rptr

301, 308 (1982) (inquiry by defendant as to

o7°7

whether wife had hired an attorney treated

as equivocal request for counsel). We h«

that defendant’s statement in this case was

of a caliber similar to those just quoted

nd like them, constituted an equivocal re-

quest for counsel.'%e See also Commen t

Equivocal Requests for Counsel

ance of Competing Policy Considera

tons, 55 Cine LRev. 767, 770-71 (1987)

(hereinafter “The Cincinnati Comment’)

(categorizing recurring types of equivocal

requests for counsel, including as one cate-

gory “(iJndecisive statements that indicate

uncertainty in the suspect’s mind about the

15. “Equivocal request” appears to be an impre

cise term in this context. Many of the referenc

es to attorneys which are held to be equivocal

requests for counsel are not requests at all It

may be preferable to refer to such statements as

“equivocal references to an attorney.” Sez, eg.,

Note, The Right to Counsel During Custodial

need or advisability of obtaining legal rep-

resentation”).

Courts have developed different stan-

dards to handle equivocal requests for

counsel. The United States Supreme Court

identified three methods for handling

equivocal requests in Smith v. /Ilinots, 469

U.S. 91, 95-96 & n. 3, 105 S.Ct 490, 492-93

& n. 3, 83 LEd.2d 488 (1984), but declined

to identify any of them as the consttuton-

ally correct one

Some courts have held that all ques

tioning must cease upon any request for

or reference to counsel, however equivo-

cal or ambiguous Others have at

tempted to define a threshold standard of

clarity for such requests, and have held

that requests falling below this threshold

do not trigger the nght to counsel

Still others have adopted a third ap

proach, holding that when an accused

makes an equivocal statement that “ar

guabiy’ can be construed as a request

for counsel, al] interrogation must tm

mediately cease except for narrow ques

tions designed to “clarify” the earlier

statement and the accused's desires re

specting counsel

Id. at 96 n. 3, 105 S.Ct at 493 o 3 (empha

sis added). In Griffin, this court adopted

the third approach, holding “that when an

accused makes an arguably equivocal re

quest for counsel during custodial interro-

gation, further questioning must be limited

to clarifying the request” 754 P.2d at 969

We remain convinced that this middle ap

proach "* is preferable to either of the two

more extreme positions and note that it is

regarded as the majonty view. Note, Judi-

cial Approaches to the Ambiguous Re-

quest for Counsel, 62 Notre Dame LRev

460, 472 (1987) [hereinafter “The Notre

Dame Note”] It is also favored by com-

mentators as the approach which best bal

ances the interests of law enforcement and

the rights of the accused. See, eg., Note

Interrogation: Equivocal References to an Aftor-

ney, 39 Vand Rev. 1159 (1986) [hereinafter

“The Vanderbilt Note’).

16. See The Vanderbilt Note at 1187 (clarifica

bon approach represents “a middle position’)

> ew ere Oe

Park,

Be eae

1110 Utah

The Right to Counsel During Custodial

Interrogation: Equivocal References to

an Attorney, 39 Vand.L.Rev. 1159, 1187-

94 (1986); The Notre Dame Note at 472-73;

The Cincinnati Comment at 783.

Unfortunately, neither Sgt. Elliot nor

Sheriff Hayward attempted to clarify de-

fendant’s equivocal reference to an attor-

ney. The transcript of the polygraph ex-

amination—and the actual tape is not part

of our record—indicates a pause following

defendant’s equivocal statements about

counsel after which Sgt Elliot stated

“Okay, if you are not worried about any-

thing I would say that is fine, let’s go

ahead and proceed.” Nothing in this state

ment by Sgt Elliot nor any subsequent

statement amounts to an effort to clarify

defendant’s request Although, as _indi-

cated previously, the state did not see fit to

brief the “equivocal request for counse!”’

issues on appeal, it argued below that de

fendant’s subsequent statement that he

was “willing to get it over with” was suffi-

cient to clarify his position and to demon-

Strate a waiver of his mght to counsel."”

We disagree

This case is similar to United States v

Prestigiacomo, 5304 F.Supp. 681 (E.D.N.Y

1981) (mem.), and State v. Moulds, 105

Idaho 880, 673 P.2d 1074 (CtApp.1983),

17. The state also argued below that defendant's

Signing the written waiver form, on the heels of

his “willing to get it over with” comment, clari

fied that his position was to waive his right to

counsel At least one court has accepted this

argument See State v. Smith, 34 Wash.App

405, 661 P2d 1001, 1003 (1983). In Smith, the

defendant signed a waiver form subsequent to

his equivocal reference to counsel and then pro-

ceeded to speak with the officers. Our Wash-

ington counterpart found those facts sufficient

to demonstrate a waiver on the part of the

defendant

We decline to adopt the Washington position

for three reasons. First, we find the position

inconsistent with the presumption against waiv-

er. See State v. Fulton, 742 P2d 1208, 1211

(Utah 1987). Second, we have already noted

that once a defendant invokes his right to coun-

sel, statements made in subsequent interroga-

tions, without counsel present and even if pur-

suant to renewed warnings, must also be sup-

pressed unless defendant initiates the contact.

See note 14, supra If police cannot circumvent

the rule through renewed Miranda warnings

days after a request for counsel, we see no

808 PACIFIC REPORTER, 2d SERIES

which were favorably cited by this court in

Griffin. In Prestigiacemo, the interroga-

tor did not clarify the defendant’s equivocal

request for counsel. 504 F.Supp. at 682.

Instead, he asked defendant whether he

would continue to answer questions. /d

After receiving an affirmative response, he

proceeded to interrogate him. /Jd The

court in that case found the interrogator

had given “the impression that what defen-

dant said would not be treated as a sign,

albeit an equivocal one, that he wished a

lawyer.” Jd at 684. That tactic was im-

proper and, consequently, the court sup-

pressed the statements which resulted

from further interrogation. Jd.

In Moulds, the defendant made an equiv-

ocal request for counsel. 673 P.2d at 1083.

Instead of clarifying the request, the inter-

rogator recognized defendant’s right, in-

formed defendant that the decision was his

to make, and then proceeded to discuss the

case with defendant /d Thereafter, the

defendant made incrimmating remarks.

Id. The Idaho court found that defen-

dant’s “statements. were the products of

interrogation continued at the instance of

the police after the right to counsel had

been invoked.” /d, 673 P.2d at 1085. Con-

sequently, the court affirmed the suppres-

sion of the statements. /d

reason to allow them to do so through a simple

waiver form given on the heels of the equivocal

reference without any clarification. Finally,

other courts have not found a waiver where the

defendant has signed a waiver form immediate-

ly after an unclarified, equivocal reference to

counsel See, eg, United States v. Prestigiaco-

mo, 504 F.Supp. 681, 682-8 (ED.N.Y.1981)

(mem.). Cf. Umited States v. Fouche, 776 F.2d

1398, 1405 (9th Cir.1985) (“TTJhe police may not

use a statement a suspect makes after an equivo-

cal request for counsel, but before the request is

clarified, as an effective waiver of the right to

counsel.”). Especially in this case, that ap

proach makes sense. Once defendant made an

equivocal reference to counsel, as explained in

the text Sgt Elliot could property do only one

thing—seek clarification. Instead, he concluded

that defendant was “not worried,” that they

should “proceed ... and get it over with....,”

and he submitted the written form to defendant

for signature. In effect, submission of the writ-

ten form to defendant was an integral part of

Sgt. Elliot's conduct which was at odds with his

duty to clarify and as such, the written form

cannot be taken as clarifying defendant's equiv-

ocal request

is court in

interroga-

equivocal

p. at 682.

hether he

jons. /d

sponse, he

Id. The

errogator

iat defen-

iS a Sign,

wished a

: was im-

durt sup-

resulted

an equiv

lat 1083

the inter

ight, in-

1 was his

icuss the

fter, the

remarks

t defen

ducts of

tance of

isel had

55. Con

Suppres-

a simpic

Squivocai

Finally

vhere the

umediate

Tence to

estigiaco-

@.Y.1981)

776 F.2d

” may not

1 equivo-

equest is

right to

that ap

made an

ained in

mnly one

mcluded

wat they

fendant

he wmit-

part of

with his

mn form

3 equiv-

STATE v. SAMPSON

Utah }111

Cite as 808 P.2d 1190 (Utah App. 1990)

The fatal flaw in both Prestigiacomo and

Moulds was the failure to cease interroga-

tion except for the very limited purpose of

clarifying whether defendant wished to as-

sert his right to counsel. The fact that

defendant continued to answer questions

was not a sufficient indication that he was

abandoning his right to counsel. In con-

trast, Griffin serves as an example of a

valid waiver of Miranda nghts following

clarification of an ambiguous reference to

counsel. In Griffin, defendant was ad

vised of his Miranda nghts, which he

waived. 754 P.2d at 966. However, during

the ensuing interview there caine a ume

when he said, “I’m calling an attorney

Id. The interrogating officer immediately

asked, “OK, are you saying you dont want

to talk any more?’ '§ Jd at 966 §7 De

fendant’s response indicated he would cc

Wi tit

tinue to talk to the detective at tnat

but planned to talk to an attorney later

Id. at 967. Thus, although the conviction

yroun

n Griffin was reversed on other g

ui pe)

further interrogation following the clanty

18 The main probiem inherent in the clarifica

ion approacn ts “the additional opportunity gv

en to law enforcement officiale to [use]

clanfying questions [to dissuade” suspects [re

asserting thew mght to counsel The Notre

Dame Note at 472. See Anderson v. Smuh, 751

F.2d 96, 104 n 9 (2nd Cir.1984); Damel v. State

644 P2d 172. 177 (Wyo.1982) (permussibdie for

officer to “seek clanfication of the suspects

desires, as long as he does not disguise the

clarification as a subterfuge for coercion or

inumidaton’) See also Thompson v. Wain

wright, 601 F.2d 768, 771-72 (Sth Cir.1979) (dur

ing purported effort to clanfy officer asserted

that obtaining counsel may not be in defen

dant’s best interest); Hampel v. State, 706 P2d

1173, 1182 (Alaska CtApp.1985) (dunng pur

ported effort to clarify, officer emphasized de

lay and complexity of obtaining an attorney)

One commentator has suggesied that only one

question should be permutted to seck clanfica

tion. With our embellishment in the form of an

introductory statement, that question Is as fol

lows: You have been advised of your mghts,

including the night to have an attorney with you

during this interview even if you cannot afford

to hire one. What you just said leads me to

wonder whether or not you wish to avail your

self of that right “Do you want the assistance

of [an attorney] at this ume or do you agree to

answer questions without the presence of [an

attorney]” Comment, Equivocal Requests jor

Counsel: A Balance of Competing Policy Consid

erations, $5 Cinc.L.Rev. 767, 782 (1987)

ing exchange just described was held not

violative of defendant’s Miranda nghts.

Defendant’s statement in this case in-

cluded a reference to an attorney which is

properly classed as an equivocal request

for counsel. Because Sgt Elliot's warn-

ings were the only Miranda warnings

which defendant received before undergo

ing custodial interrogation, it was neces

sary that someone clarify that equivocal

request before defendant could be subject

ed to custodial interrogation. Defendant's

request was never clanfied and, conse

quently, the state failed to demonstrate a

valid waiver of defendant’s nght to coun

sel. The trial court erred in holding to the

contrary. We accordingly reverse and re

mand for a new tnal

Because the trial court concluded that

defendant’s Miranda rights had not beer

violated, the parties did not have occasio!

to argue which evidence had to be excluded

and whether any exceptions to the exclu

ynary rule might apply.'? On remand

19. TI dependent source doctnne” and “inev

itable discovery rule” are among the excepoons

to the exclusionary rule. See Slate v Northrup

756 P.2d 1288, 1292-94 (Utah CrApp.1988). The

stzte had no occasion to argue either excepuon

on appeal or below. Consequently, we are un

able to determine whether either of these excep

tions might 2pply in this case lo some of the

evidence which might otherwise have to be sup

pressed

“The independent source doctnne allows ad

mission of evidence that has been discovered by

means wholly independent of any consntutiona!

violation.” Nix v. Williams, 467 US. 431, 443

104 S.Ct 2501, 2508, 81 LEd2d 377 (1984)

Thus. any evidence which was discovered apart

from defendant's statements made during cusio-

dial interrogation need not be excluded

The inevitable discovery rule allows the ad

mission of evidence as long as “the prosecution

can establish by a preponderance of the evi

dence that the information ultimately or inevita

bly would have been discovered by lawful

means.” /d at 444, 104 S.Ct. at 2509. See, eg,

People v. Freeman, 739 P2d 856, 860 (Colo.Ct

App.1987) (body of deceased victim was so con

spicuously located that discovery was inev-

itable); State v. Miller, 300 Or. 203, 709 P2d

225, 242-43 (1985) (hotel! maid would inevitably

have discovered body of deceased victim within

56 hours of actual discovery and reported dis

covery to police), cert. denied, 475 US 1141,

106 S.Ct. 1793, 90 LEd2d 339 (1986). Under

this rule, the prosecution must show that the

evidence “would” have been discovered, not

y eel

1112 Utah

the parties must of course be allowed to

#rgue these various points. After enter-

taining these arguments, the trial court

must exclude all primary evidence elicited

during the custodial interrogation and all

incriminating evidence derived therefrom

which is not saved by an exception to the

exclusionary rule. Miranda v. Anzona,

384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16

LEd.2d 694 (1966); Nix v. Williams, 467

U.S. 431, 441, 104 S.Ct 2501, 2507, 31

L.Ed.2d 377 (1984)

Our decision is a difficult one and will be

a source of consternation to many, who will

question why the state should be put to the

cost and burden of having to retry someone

who clearly is guilty. But while the results

in particular cases may be unwelcome,

“[t]he fifth amendment exclusionary rule is

clearly dictated by the Constitution and is

the only possible means of protecting the

values underlying the privilege against

self-incrimination.” M. Gardner, The

Emerging Good Faith Exception to the

Miranda Rule—A Critique, 35 Hastings

LJ. 429, 466 (1984)

verse and remand for proceedings consist-

ent with this opinion

We accordingly re

BILLINGS and GREENWOOD, JJ..

concur

ON PETITION FOR REHEARING

“New” Matter

In its first brief and oral argument be

fore this court, the state, as to the range of

Miranda issues, made a deliberate tactical

decision to rely solely on the theory that

defendant was not subjected to “custodial

interrogation” at the time of the polygraph

examination, supra at 1108, an issue which

has now been resolved in defendant’s fa-

vor. See id In our mitial opinion we

regarded this approach by the state as

“stop(ping] short of conceding” defen-

simply that it “could” or “might” have been

discovered. Miller, 709 P2d at 242. See also

United States v. Romero, 692 F 2d 699, 704 (10th

Cir.1982). It is altogether unclear from the

record before us how much, if any, of the evi-

dence discovered as a result of the improper

custodial interrogaticn would inevitably have

been discovered.

808 PACIFIC REPORTER, 2d SERIES

dant’s arguments concerning his equivocal

request for counsel /d In its petition for

rehearing, the state now argues for the

first time that defendant’s response to sub-

sequent Miranda warnings ™ adequately

served to clarify defendant’s equivocal re

quest for counsel or, perhaps more accu-

rately, obviated any need to clarify the

request.

While the state's decision not to develop

this issue at trial is understandable in light

of the state’s success there on the argu-

ment that defendant had not even equivo-

cally invoked his nght to counsel when

first given Miranda warnings, see supra

at 1108, the state should have raised the

argument in initia! briefing on appeal if it

believed this fall-back position had merit.

Given the posture of the trial court pro-

ceedings, this would not have run afoul of

our proscmpuon against raising arguments

for the first tme on appeal. But in such a

situation, consistent with our standing

aversion to considering for the first time at

some later stage issues that could have

been raised at an earlier stage, we ordinari-

ly will not consider arguments presented

for the first time on petition for rehearing,

and are especially loathe to revisit a deci-

sion once rendered when the party seeking

reconsideration intentionally did not

present us with particular arguments. in

more tmely fashion. See State v. Mar-

shall, 791 P.2d 880, 885-87 (Utah CtApp.),

cert. denied, 800 P.2d 1105 (Utah 1990).

However, we are not unsympathetic to

the sheer volume and complexity of issues

presented in this case, sonf ten having

been raised by appellant, even though we

found it necessary to reach only two in our

nitial opinion. See supra, at 1103. Even

without addressing the issues of whether,

assuming custodial imterrogation, defen-

dant equivocally invoked his night to coun-

sel and, if he did, whether the subsequent

20. In view of the state's prior position, we made

only minimal reference to the subsequent warn-

ings in our initial opinion, noting that “the state

does not argue the second set of Miranda warn-

ings are of any consequence to our analysis.”

Supra at 1108 n. 14

ey eee

equivocal

etition for

s for the

se to sub-

dequately

livocal re

wore accu-

arify the

o develop

le in light

the argu-

nN equivo-

sel when

ee supra

aised the

peal if it

id merit

Jurt pro-

afoul! of

guments

n such a

standing

t Gme at

ud have

ordinan

resented

hearing,

t a deci-

seeking

id not

ents in

v. Mar

*LApp.),

1 1990)

hetic to

f issues

having

ugh we

) in our

Even

hether,

defen-

0 coun-

equent

ve made

at warn-

the state

la warn

ialysis.”

vb rte @ de

STATE v. SAMPSON Utah

1113

Cite as 808 P2d 1100 (Utah App. 1990)

warnings cured the problem, the state's

initial brief ran well over our page limit for

briefs.

Considering the state’s burden when con-

fronted with multiple issues of the magni-

tude presented here, in conjunction with

the significance of the waiver issue, and in

light of helpful authority from the United

States Supreme Court which was not avail-

able at the time of initial argument, we

grant the states petition for rehearing and

proceed to treat its claim that the subse

quent Miranda warnings and defendant's

response thereto served to clamfy his pnor

equivocal request for counsel! or at least

rendered it inconsequential as to

criminating statement

ting new Miranda warning

juent Miranda Warnings A

( ying Equivoca! Reques

ey) ™ - '

{5] The state concedes for purposes [

our further review that Sergeant Ell

erred in failing to follow firmly established

r lant hy nor slanfuing Jef nodant

precece! Dy not Claruying Ggeiendat

equivocal reference to counse! when jefer

dant was first given the Miranda warn

ings. However, the state argues that a

subsequent set of warnings, subsequent

waiver by defendant, ar informat

gleaned from the subsequent interrogau

purged the taint of illegality untroduced by

the earlier disregard of defendant's equiv

cal request for counsel. The state calls our

ree

attention to Oregon v. Elstad, 470 |

nm meer 79@° a + ) - (108°

298, 105 5.Ct 1285, 54 LEd.2d 222 (198:

and claims we improperly relied on Ed

wards v. Arizona, 451 U.S. 477, 101 S.Ct

1880, 68 LEd.2d 378 (1981). See Samp

son, at 1108 n. 14. The state focuses par

ticularly on an ambiguous footmote in £d

wards. See 451 U.S. at 486 n. 9, 101 S.Ct

at 1885 n. 9

In Elstad, the United States Supreme

Court held that a defendant’s subsequent

statement, given after an initial statement

made without the benefit of Miranda

warnings, may be admissible when Mf

21. We note that these circumstances are unique

and hasten to caution that the complexity of

issues, the length of briefs, or a tactical choice

to initially avoid issues on appeal will normally

randa warnings preceded the subsequent

statement and there were no improper or

coercive tactics employed by police in con

nection with the initial statement E£istad,

470 U.S. at 314, 105 S.Ct at 1296. The

Court’s rationale was that Miranda's pro

tective measures, not the Fifth Amendment

itself, were violated in such a case, making

suppression of the later statements unnec

essary. Elstad, 470 US. at 308, 105 S.Ct

at 1292

On the other hand, in Edwa

emphasized that, unless an accused in

ates the encounter, police cannot reacm

ister Miranda warnings and

gation once a ndant ha clear a

sertec his r her nght P 1

earlier “ Miranda warning

were actua g Edwards, 451 | i

484 RS 2 RR4_z

The state ir r 3 ” a) atte

yn tne ear assert anguag

Edwards, and h that Edwards is accor

cause defendant did not clearly assert fn

mgnt to ccunse th case, and cetermune

whether the Fifth Amendment itself was

violate esse the state asserts we

mus fin tha defenda effective

waive his mg to counse! when he wa:

given new Mirunda warnings and said

nothing about counsel since the failure

clarify the equivocal request for counse!

f the Miranda doc

ot a violation of the Fifth Amend

ment.

We recognize that waiver of consttuton

] nghts ts “possible when the request

for counsel is equivocal.” Edwards, 451

U.S. at 486 n. 9, 101 S.Ct at 18860. 9. But

we are hard-pressed to see how an equivo-

cal request for counsel can be meanmgfully

waived in advance of its having ever been

clarified

“The merit of the Edwards decision lies

in the clarity of its command and the cer-

tainty of its application.” Minnick v. Mis-

not suffice to induce us to cons.der issues raised

for the first time on a request to reconsider a

decision already made

rr ve

Oo ee TT ee Se

ee ee meme eeimetn

22 Og Segoe

PT U WE aqevwe

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e 4

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SO ne eee RE mene

et io

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Sitiee >.

~~ os 1K

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wr. ae

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a ie

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ak 3

808 PACIFIC REPORTER, 2d SERIES

not subject to furt!

[police] unt] counse

has been made available to him Ed

wards, 451 US. at 485, 101 S.Ct at 1885

The Edwards decision leaves no room for

ambiguity or uncertainty in the context of

a clear inv 1 of the mght to counse

The singu

defendant

1 roreciose t

SOuity of waiver of the mght to counse

defendant, once having invoked the nght, freely

initiates further conversation with officers even

though the defendant has not consulted counse!

See 451 US. at 484-85, 101 S.Cr at 1884-85

See also United Siates v. De La Luz Gallegos, 738

F.2d 378, 381 (10th Cir.) (where attorney is

requested but not yet provided, Edwards does

not preciude introduction of voluntary state

ments not made as a result of police question

ing), cert demed, 469 US. 1076, 105 S.Ct $74

83 LEd2d 514 (1984)

23. The concern which explains our view is, in

large part, this: In the course of properly clari

fying an equivocal request, the sanctity of an

accused's right to counsel will be brought home

for the accused. See supra at 1110. Lf instead

an equivocal request is ignored, and the timid

or ignorant suspect's halting effort to explore

the advisability of seeking counsel is apparently

clarified. See supra, at 1110 n. 17 (“Once

defendant made an equivoca! reference to

counse Sgt. Elliot could properly do

only thing—seek clarification.”). Ne+

ther the passage of time, however great,

nor the administration of additional Mi-

randa ings will allow officers to re

convene interrogation absent clarification.

[f a signed waiver executed immediately

after the equivocal request for counsel will

not be taken as adequate clarification. see

l] there is no reason why a waiver

be recognized as such.

we Delleve that an equivocal

nsei must be treated by the

wie courts as

us request for

t has been

de other

la vs. Violation Of

Amendment

te urges that the subsequent

lemvatve evidence were

ted under Elstad, claiming

clamfy defendant's equivoca!

for counsel, although a violation of

Miranda, was not violative of the Fifth

Amendment itself. in advancing its Elstad

Martin v. Wainwnght, 770 F.2d 918 (11th

" 7

“

argument, the state pmncipally relies on

1985), cert denied, 479 U

3 L.Ed.2d 281 (1986).*#

for naught, the suspect may perceive he is being

discouraged from availing himself of the right

to counsel. Someone in defendant's shoes who

simply gets a new set of Miranda warnings with

no acknowledgement of his prnor reference to

counse! may think “I wondered before if I

should have a lawyer. My question was ig

nored here's no sense in raising it again”

24. The state has cited other cases to similar

effect in its petition and at oral argument Eg.

United States v. Gonzalez-Sandoval, 894 F.2d

1043 (9th Cir.1990); United States v. Barte, 868

F.2d 773 (5th Cir.), cert demed, -— US. ’

110 S.Ct. $47, 107 LEd 2d $43 (1989); Elledge v

Dugger, 823 F2d 1439 (11th Cir.1987); United

States v. Patterson, 812 F.2d 1188 (9th Cir.1987),

cert denied, 485 US. 922, 108 S.Ct 1093, 99

LEd2d 255 (1988); Thompson v. Wainwright,

601 F.2d 768 (Sth Cir.1979); United States ex rel

Hudson v. Cannon, $29 F.2d 890 (7th Cir.1976)

Even if they were otherwise persuasive, the

(“Once

ence to

rly do

. Nei-

great,

ial Mi-

to re-

ication.

diately

se] will

yn, see

Waiver

s such.

uvocal

by the

ts as

est for

been

other

1 Of

quent

were

iming

ivocal

ion of

Fifth

‘lstad

ss On

(11th

, 107

Mar

™

STATE v. SAMPSON

Utah 1115

Cite as 808 P2d 1100 (Utah App. 1990)

tin, the suspect was given his Miranda

warnings. In the course of interrogation,

he asked: “Can't we wait until tomorrow?”

Martin, 770 F.2d at 922-23. The Eleventh

Circuit held this question was an equivocal

request to terminate questioning and to

invoke the night to remain silent, at least

temporarily. It is notable that the court

did not find the question to be an equivocal

request for counsel, although it determined

that an equivocal request to terminate

questioning should be treated analogously

to an equivocal request for counsel. Mar

sean Da a0

tin F.2d at 924

The rt held that the defendant's first

4 SU On equiva

tai re remain € tad Wa n

o r Wa 1crmM a vioia € f

Virar Vf fyon 77 . at 924 The

) rr? Stz £ s | i + fa re ti ts rmina f

| y pend 4 ani! a ) Ke the

fa give Miranda warning th

C 1a ext yvioials the tech 1 re

reme the Miranda rule aithoug

it 1ioes , v1 ste by ¢ F r Amer iment

at 928-29 Rut because the Oe ans

fes was not coerced, the court upne

4 A 4 ann *t -_

ac 3 a sect ess give

severa i ater ano or e nee { re

news Yu nda warning a after the

1¢€ i x é j

Ase e e state are rea 4

abie 2 » case es tw sets of M

ra wad Z> ine wed a equi

<A c ¢ r Tt 7a ar he sex tc

lowed by apparent waiver—as is the case detore

is The cases. with the exception of Marnn

which we treat more fully in the text, instead

involve some variation on the Elstad theme

statements made wit! Miranda warnings,

followed by Miranda warnings, waiver, and

fur

ther statements

The state additionally cites, in a letter sub

mitted after argument on the petition for re

hearing, State v. Chnstofferson, 793 Pld 944

(Utah CtApp.1990), claiming that this court

there “held that [a] second set [of warnings]

served as a ciarificauon of the equivocal re

quest.” We do not read Christofferson this way

The police officers in Chnstofferson apparently

ceased questioning after the equivocal request

for counse!, and proceeded to clarify the defen-

dant’s equivocal request. Once they did so and

learned that the defendant did not desire coun

sel, the officers continued interrogation. /d at

The state asks us to treat the failure to

clarify defendant's equivocal request for

counsel in this case in similar fashion to

Martin and to determine that it was mere

ly a technical violation of the Miranda

rule, and therefore does not bar introduc-

tion of defendant’s subsequent confession

made after new Miranda warnings were

given. In urging this analogy, the state

slights the continued vitality and invigora

tion given “iwards v. Anzona in subse

quent Supreme Court decisions, including

the recent decisions in Minnick v. Missis

sippi, — US 111 S.Ct 486, 112

LEd2d 489 (1990) and Anzona v. Rober

son, 486 US. 6 108 S.Ct 2093, 100

LEd.2d 704 (198% Moreover, such an

river ur determina

analysis is inapposite g

tion that an equivocal! reference to coun

b ti] properly clamfied, treated

should be, un

on equal footing with an unambiguous re

mey.2

quest to speak to an att

‘larification ol!

equivocal request for counsel if interroga

A mgid insistence

tion is to continue requires just that—la

fication. State v. Gnffin, 754 P.2d 9

969 (Utah CtApp.1988). An equivocal re

quest is simply not clanfied by being ig

nored by the police. Clamfication necessar

ily implies that the equivocal request must

be acknowledged by the interrogator. ihe

something like

nmatae mate ,

interrogawi mus as K

Your response suggests that you may

947. We hesitate to read the decision as equat

ing a mere second administration of Miranda

warnings, even Miranda mghts were then

tive clamficauion of an

equivocal request for counsel. Such an impor

tant and far-reaching conclusion would surely

have been accompanied by lengthy discussion

and analysis, which is not to be found in the

opinion, and is at odds with language in the

opinion noting that clamfying questions were

asked prior to proceeding with a second set of

warnings and further interrogation. See +

invoked with defin

25. The state's proffered analysis is further

flawed in that the bright-line rule of Edwards

cited in Minnick v. Mississipp for “clanry of its

command” and “certainty of its applicauon,”

111 S.Ct. at 490, would be undermined if courts

were required to receive evidence pertaining to

the lack of coercion attending an equivocal re

quest for counsel. In addition to breeding con

ternpt for a cherished constitutional mght, sig

nificant judicial resources would be needle-sly

expended, a result clearly eschewed in Edwards

and its progeny

FOE eee Fee ee 8 oe eee a.

rr re rr ar mm awe

Ol LO EO ey ee Oe

TA PASE CRE A TE ew terete

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‘

1116 Utah

wish to consult with an attorney before

answering any of my questions. Do you

wish to speak with an attorney or do you

wish to answer my questions now?”

Sampson, at 1109.

For all practical purposes, as we have

held above, until such time as the equivocal

reference to counsel is clarified as not be

ing an actual request for counsel, it must

be treated the same as an express and

unambiguous request for counsel. Cf

Griffin, 754 P.2d at 969. (“{W]Jhen an ac-

cused makes an arguably equivocal request

for counsel during custodial interrogation,

further questioning must be limited to clar

ifying the request.”) The question then

becomes whether the Constitution, or only

Miranda, is violated if police disregard an

invocation of the nght to counsel and ob

tain a confession

The answer is clear. Edwards and its

progeny teach that once the right to coun

sel has been invoked “subsequent incrimi-

nating statements made without [the defen-

dant’s] attorney present [violate] the rights

secured to the defendant by the Fifth and

Fourteenth Amendments to the United

States Constitution.” ™ Oregon v. Brad

shaw, 462 U.S. 1039, 1043, 103 S.Ct 2830,

2833, 77 L.Ed.2d 405 (1983) (emphasis add

ed); See Shea v. Louisiana, 470 US. 51,

52, 105 S.Ct 1065, 1066, 84 LEd 2d 38

(1985) (interrogation subsequent to a re

quest for counsel! violates Fifth and Four

teenth

1 See also Minnick,

111 S.Ct at 489 (valid waiver cannot be

Amendments)

26. Insofar as Marnn'’s view of an analogy be-

tween an equivocal invocation of the right to

remain silent and an equivocal request for

counsel might suggest otherwise, we reject that

view. Cf. Roberson, 486 US. at 683, 108 S.Ct at

2099 (emphasizing distinction between exercise

of right to terminate interrogation and remain

silent and right to counse)).

27. The state also argues that even if defendant's

statements must be suppressed, the derivative

physical evidence, chiefly the victim's body

would be properly admitted, presumably by way

of photographs and descriptive testimony. The

state proceeds upon the assumption that the

interrogation subsequent to defendant's equivo-

cal reference to counsel, concededly a violation

of the Miranda rule, was merely technically

defective, not constitutionally infirm. The state

808 PACIFIC REPORTER, 2d SERIES

established by showing that defendant re

sponded to further questions).

In Roberson, the Court stated: “Surely

there is nothing ambiguous about the re

quirement that after a person in custody

has expressed his desire [for] counsel, he

‘S not subject to further interrogation

until] counsel has been made available to

him....’” 486 U.S. at 682, 108 S.Ct at

2098 (quoting Edwards, 451 U.S. at 484-85,

101 S.Ct. at 1885). Given our view that an

equivocal request must be treated like a

clear request pending clarification, failure

to clarify an equivocal request, and interro-

gation conducted after that request, clearly

do not fall within the rubric of a “mere

technical violation” as suggested by the

state

The United States Supreme Court has

demonstrated no crypticism or ambivalence

in holding violations of the right to counsel

during interrogation to be constitutional in

nature. See Minnick, 111 S.Ct at 491

(“Whatever the ambiguities of our earlier

cases on this point, we now hold that when

counsel! is requested, interrogation must

cease, and officials may not reinitiate inter-

rogation without counsel present "Y;

Roberson, 486 U.S. at 683, 108 S.Ct at

2098-99 (emphasizing distinction between

exercise of right to terminate interrogation

and remain silent and right to counsel).

We therefore decline to adopt a rule

which would relegate failure to clarify an

equivocal request for counsel to the status

of “mere” Miranda violation for Elstad

purposes.*’

calls our attention to several decisions in which

other courts have allowed the admission of de

rivative evidence obtained subsequent to inter

rogation conducted in violation of the technical

rules of Miranda See, eg, United States v.

Patterson, 812 F2d 1188 (9h Cir.1987), cert

dered, 485 US. 922, 108 S.Ct 1093, 99 LEd.2d

255 (1988); in re Owen F, 70 Md_App. 678, 523

Ald 627, cert. denied, 310 Md. 275, 528 A2d

1286 (1987); State v. Wethered, 110 Wash.2d

466, 755 Pld 797 (1988). We find the cases

cited by the state to be inapplicable, as each

addresses violations of the Miranda rule which

are not deemed constitutional in dimension.

We have already held in evaluating the state's

Elstad argument that the violation of defen-

dant’s right to counsel was of constitutional

dimension and not merely a violation of Mi-

randa.

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lant re-

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ion ...

able to

Ct at

184-85,

that an

like a

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clearly

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dy the

rt has

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earlier

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CONCLUSION

The subsequent Miranda warnings giv-

en to_defendant did not serve to clarify his

oc prior equivocal request for counsel] or

Zz .s

q somehow make that request go away. The

*4 violation was constitutional in magnitude.

ae ° 7 .

R of Accordingly, testimonial and physical ev-

aa dence derived from all ensuing interroga

tion must be suppressed

Fi Having reheard and reconsidered the

, matter, our initial opinion stands as supple

mented herein

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‘ °) £ rty mumoen vsTiM

} ._ 2 eo

“

a GATE CITY FEDERAL SAVINGS AND

gc ¥ LOAN ASSOCIATION, Plaintiff

“Ce

“ and Appellant

of 4 v

e Edward A. DALTON, Jr.. John C. Forres

ber” ter, Jr., Michael C. Johnson, and Daniel

+ W. Marcum, et al., Defendants and Ap

pe llees

ty No. 890498—CA

+e f Appea

‘et

ou > Mar t

. |

7 |

Be. | Lende roug ac ga OTTO Ww

ers following default on trust deeds and

notes. The District Court, Summit County,

J. Dennis Frederick, J., entered summary

judgment in favor of borrowers, and lender

appealed. The Court of Appeals, Garff, J.,

held that: (1) under trust deed provision

Evidence obtained in violation of the Fifth

Amendment is properly suppressed under the

fruit of the poisonous tree doctrine. Supra at

Llll. See, eg. Shea v. Louisiana, 470 US. 51,

$2, 105 S.Ct. 1065, 1066, 84 LEd2d 38 (1985)

(interrogation subsequent to request for counsel!

violates Fifth Amendment). See also Nix v

Williams, 467 US. 431, 442 & no 3, 104 S.Cr

2501, 2508 & n. 3, 81 LEd.2d 377 (1984). While

we are not ignorant of the obstacles which the

state will face in presenting a case on remand

without evidence of the body absent the applica-

bility of some exception to the exclusionary

‘GATE CITY FEDERAL S&L v. DALTON

Cite as 808 P2d 1117 (Utah App. 1991)

Utah 1117

setting forth requirements to release bor-

rowers from their obligations on note, in-

demnity agreement executed by lender sat-

isfied requirements that written assump

tion be executed by borrowers’ successor in

interest and be accepted in writing by lend-

er, and (2) lender waived its option to accel-

erate borrowers’ obligations under trust

deeds and note by consenting to borrowers’

transfer of property in indemnity agree

ment, in which it acknowledged assumption

of mortgages

Affirmed

1. Appeal and Error @934(1

In determining whether lower court

correctly found that there was no genuine

issue of material fact in ruling on summary

judgment motion, Court of Appeals news

facts and inferences to be drawn therefrom

in light most favorable to losing party

Rules Civ Proc., Rule 56(c

2. Appeal and Error 842(1

Court of Appeals reviews tnal court's

‘

decision on legai quesGons [for correctness

3. Indemnity €9(1

Under trust deed provision setting

forth requirements for release of borrow

ers from their obligations on note, indemni

ty agreement executed by lender satisfied

requirements that wmtten assumption be

executed by borrowers’ successor in inter

est and be accepted in writing by ‘ender;

under indemnity agreement, borrowers’

successor in interest agreed not only to

indemnify lender for any mechanics lens

on property, but also to assume individual

mortgages

rule, see supra at 1111 & n 19, the derivative

evidence of the child’s body was obtained as a

direct result of interrogation that was umproper

as a matter of consttutional law, and must,

absent some exception, be suppressed. We are

not enthusiastic about the obstacles our decision

will create to securing defendant's conviction on

retrial. But we are unwilling to sidestep impor

tant constitutional safeguards to assuage the

frustrations that inhere in retrying a defendant

clearly guilty of such a heinous crime. See Nix

vy. Williams, 467 US. at 442, 104 S.Ct at 2508.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.