# Opposition Brief — Utah v. Sampson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2276%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 914

## Text

U.S.

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Supreme Cou

91-1072

No.

HE SUPREME COURT OF THE UNITED STATES

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OCTOBER TERM,

BRIEF IN OPPOSITION

RESPONDENT ’S

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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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TABLE OF CONTENTS

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eee Ge ee es 6 eke! 8 oe ee ee ee OS OS ee ee ee ii
TABLE OF AUTHORITIES a ele fel 6 Mle 6. a eee es o> O76 ers iii
Pees GS Bee GUMS «6 8 ee ee we ew ee le 8 6 eS ee 1
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)

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United States v. Cherry, 73 F.2d 1124 (Sth Cir. 1979)
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JInited até Kel ey ; > r nr la t
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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

STATE OF UTAH,
V.
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
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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

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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,

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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.

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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]

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M Amps res{ 1s ne state f an’s argument i
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liiustratl che rre less I lé is 1Y lL Appeals op1ini
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l. Notably, Mr. Sampson had indicated from his Motion to Suppress

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inconsequential because the equivocal request for counsel had neve:
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been clarified nor counsel provided and that police, not he,
initiated the subsequent discussions.
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and the appropriateness of the Utah Supreme Court’s refusal to

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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

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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

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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

4
‘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
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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

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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
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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

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purportedly revealed in the initial opinion of the court. This

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

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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

“ x P IISO > : ie} : 4 Pele i 1aKi1mM ¥ Miller,
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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
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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
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MiU, Willie > 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

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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

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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

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

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violate constitutional strictures requiring exclusion of the
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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

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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
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ling re jniZ1ing a! Lnv ation f righ Ca sunsel while
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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
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he above reasons, his irt should not grant the
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ate’*’sS petition on its asserted point II The question is not
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pr erly be r é Surt; the appellate court decision 1s correct
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and > stent wit ompetent case iW and no genuine conflict
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in point III of its petition, the State of Utah requests

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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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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

Cc

[i J P A 7 rt
— 4 ms
ELIZABETH A. BOWMAN
Attorney~f
a

‘RICHARD G. UDAY / |
Attorney for Respgndént

ne
.
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
v

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

J

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

to

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

>

- =
Co
=:
— ta
?
+. £

A.
» 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

r
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.
a
;
;
roe
;

‘——— ree eee
— ee

“;

> Re

“

;

stacy **

2
r #

Shave a:

a ey Pad %
wert Ce:

tne

a
bA NS 2 78 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 |
© further ; understood what his mghts were and Defendant has raised numerous issue ’

: ..° oe , th a 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 ? rmand 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 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

tp

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
Te
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

r

to talk any more?’ '§ Jd at 966 §7 De
fendant’s response indicated he would cc

by
me
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

de
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
Th

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

Se
7

ee ee meme eeimetn

22 Og Segoe

-
PT U WE aqevwe

va gee ee
e 4
pons
OW Ss er a ae

oT =

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et io

ee ee
Sitiee >.
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~se-

wr. ae

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eee’
: Remar:

a ie

aerwe
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, TS r.;

.

‘ern

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‘as

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

“

S
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
j
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
+t
Ase e e state are rea 4
abie 2 » case es tw sets of M
ra wad Z> ine wed a equi
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
T

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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>

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2276%3A3. Public record. Not legal advice.