Opposition Brief — Colorado v. Romero

JUL 30

No. 97-1688 199%

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

THE STATE OF COLORADO,

Petitioner,

vs.

MARIO ROMERO,

Respondent.

On Petition for Writ of Certiorari to

The Supreme Court of the State of Colorado

RESPONDENT’S BRIEF IN OPPOSITION

G. Paul McCormick, Jr.

Counsel of Record

McCormick & Christoph, P.C.

1406 Pearl Street, Suite 200

Boulder, Colorado 80302

(303) 443-2281

Counsel for Respondent

QUESTION PRESENTED FOR REVIEW

Whether the respondent’s statement, "I should talk to a lawyer," made near the

beginning of the interrogation constituted an unambiguous request for counsel within the

meaning of Davis v. United States, 512 U.S. 452 (1994).

TABLE OF CONTENTS

CPR eS SOR RSRET EdD FAD NEE oo vo Ke sb buses tas Casi oon wees 6s

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I. THE COLORADO SUPREME COURT PROPERLY IMPLEMENTED

THE DAVIS STANDARD WHEN IT FOUND THE RESPONDENTS

REQUEST FOR COUNSEL TO BE UNAMBIGUOUS. ................

Il. THIS COURT SHOULD NOT ABANDON THE TOTALITY OF THE

CIRCUMSTANCES TEST WHEN DETERMINING WHETHER

A REQUEST FOR COUNSEL IS UNAMBIGUOUS. ..................

Il. THE COLORADO SUPREME COURT HAS NOT JOINED A

"MINORITY OF JURISDICTIONS SEEKING TO UNDERMINE THE

SC Ae GE MOE I a 6 ha oes bak OEMS e UOC EL EMRE oe e eRe RS

Se ae Ls LEGS Inara Bray Foams ne grr aru ar a od Deer means en aa se hy aie ea

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6

TABLE OF AUTHORITIES

CASES

Brown v. State, 668 So.2d 102 (Ala. Cr. App. 1995) ........ ccc ccccccccccccecs 12

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Davis v. United States, 512 U.S. 452 (1994) ...... cece eee eees i, 2, 3, 5-9, 12, 14, 15

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Edwards v. Afmvona, 451 US. 477, SEZ ISB) so oi cnc ce ccccsccwcsens 7, 8, 10, 14

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Loni v. Duckworth, 29 F260 1216 (7th Cir. 1994)... 0. ie ccc ctcee es 6, 7, 10, 11

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See & Sey, eo Fe ee CL ee TO ass oi ia eee denies weecs’s 6, 7

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Midkiff v. Commonwealth, 462 S.E.2d 112 (Va. 1995) ......... 02 cece eee eeeees 12

FO CON HG, GEE TAs PO CRUD ak oc hea ce bees vancnctevenas 7

FURR & Be, FET Tae Fe Fee Cee GR. MOOD ois ee ck dh aseksccececsncancns 13

pcrmeckionn w. Dustaneieie, 412 US. Z18 (1973) . .. c ceccccccewcceweccccnss 7

Smith v. Endell, 860 F.2d 1528 (9th Cir. 1988), cert. denied, 498 U.S. 981 (1990)... 9, 10

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State v. Parker, 886 S.W.2d 908 (Mo. 1994), cert. denied, 514 U.S. 1098 (1995) ...... 10

Se Fee ek Le Tis 478 Cs FS BOOT) og oh ws vet ert avisccdiecancese 13

Facmer v Seats, Gt S.BA6 40, S81 CO. ADO. T9GT) oo ec vevevetascewcsuscs 13

United States v. Menzer, 29 F.3d 1223 (7th Cir. 1994) cert. denied 513 U.S. 1002 (1994) 12

Ger ee Mc IN, COE TOD ks ee ccdw eu weee Veda sees dverees 6, 7, 11

a ohne s eae dead ous 7

iv

No. 97-1688

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

THE STATE OF COLORADO,

Petitioner,

VS.

MARIO ROMERO,

Respondent.

On Petition for Writ of Certiorari to

The Supreme Court of the State of Colorado

RESPONDENT'S BRIEF IN OPPOSITION

The respondent, Mario Romero, respectfully requests this Court deny the petition for

writ of certiorari, which seeks review of the Colorado Supreme Court’s opinion in this case.

That opinion is reported at P.2d___ (Colo. 1998) (Pet. app. A)

SUMMARY OF THE ARGUMENT

The Colorado Supreme Court correctly stated the standard in Davis and faithfully

implemented it. The Court properly invoked the totality of the circumstances test to

determine that the respondent’s request for counsel was unambiguous. Primarily the Court

looked to the actual words spoken by the respondent, "I should wait and I should talk to a

lawyer." Coiorado’s request to abandor: the totality of the circumstances test in

Edwards/Davis situations is made without citing any authority. Finally, Colorado’s assertion

that the decision in Romero is aligned with a minority of jurisdictions, which are bent upon

undermining Davis is unsupported by the very cases cited by Colorado. In the final analysis,

no such majority/minority split exists, but rather, the lower courts have diligently applied

the Davis standard to a variety of situations, each one determined upon its own specific facts

and circumstances. Accordingly, Colorado’s petition for writ of certiorari should be denied.

REASONS WHY THE PETITION SHOULD BE DENIED

I. THE COLORADO SUPREME COURT PROPERLY IMPLEMENTED THE

DAVIS STANDARD WHEN IT FOUND THE RESPONDENT’S REQUEST

FOR COUNSEL TO BE UNAMBIGUOUS.

Colorado claims that the Colorado Supreme Court merely gave lip service to the

standard found in Davis v. United States, 512 U.S. 452 (1994), and failed to properly

implement it. However, a careful review of the record reveals the opposite. The Court

specifically relied upon the standard announced by this Court in Davis.

If the desire for counsel is presented "sufficiently clearly that a reasonable

police officer in the circumstances would understand the statement to be a

request for an attorney," no ambiguity or equivocation exists, and all

questioning must cease until the person can consult with counsel or the

accused voluntarily reinitiates conversation.

Romero pet. app. A-11 (emphasis added by the Colorado Supreme

Court; quoting from Davis, 512 U.S. at 459).

Elsewhere in the opinion, the Court stated, "[w]hether an accused has invoked the right to

counsel during questioning is an objective inquiry" (pet. app. A-10) and that the request for

counsel must be made "sufficiently clearly” (pet. app. A-21) (quoting from Davis, 512 U.S.

at 459). The Colorado Supreme Court further reasoned,

When invoking the right to counsel during custodial interrogation a person

may demand an attorney, a person may ask for an attorney or a person may

make some statement which can "reasonable be construed to be an expression

of a desire for the assistance of an attorney."

Pet. app. A-24, 25 (emphasis added by the Colorado Supreme Court,

and quoting from Davis, 512 U.S. at 459).

It is in the latter category (the reasonable expression of a desire for the assistance of an

attorney) that the Court placed the respondent’s request for counsel. Pet. app. A-25.

Both the majority and the lone dissenting justice agreed that the totality of the

circumstances test applies in determining whether a request for counsel is unambiguous.’

That is consistent with this Court’s ruling in Davis, that a "reasonable police officer in the

circumstances would understand the statement to be a request for an attorney." Davis, 512

U.S. at 459 (emphasis added). :

However, the "circumstances" relied upon by the Colorado Supreme Court, were not

that far reaching, notwithstanding the assertions to the contrary made by Colorado. A fair

reading of the decision is that the actual words uttered by the respondent constituted the

unambiguous request. Those words were "I should wait and I should talk to a lawyer...

because I do want to go to trial on this." Indeed, the Colorado Supreme Court distilled

this statement down to the simple request "I should talk to a lawyer." Pet. app. A-7, 22, 23.

One of the "circumstances" applied by the Colorado Supreme Court was to strip from

the statement the respondent’s use of slang so that the essential message could be focused

upon. Pet. app. A-21, 22. Throughout the interview the respondent spoke in slang. For

’ Petitioner not only advocates abandonment of totality of the circumstances test, but

also criticizes the Colorado Supreme Court for citing with approval Michigan v.

Johnson, 475 U.S. 625, 633 (1986) where this Court ruled that a “broad, rather than

narrow interpretation to a defendant’s request for counsel" applies in the Sixth

Amendment context. Petitioner’s concern is unwarranted since the Colorado

Supreme Court did not implement a "broad" approach, but rather, correctly invoked

the totality of the circumstances test.

2 The actual statement was, "Yea. Cause I, ya know, I’m not gunna lie man, ya know,

I mean I should wait, and I should talk to a lawyer and this and that and ya know

because I do want to go to trial on this." Pet. App. C-4.

3

ELLEN D IEE DOLL EN. Bi EAE

example he said "ya know" over 100 times. Pet. app. C. During his request for counsel, “ya

know" was said three times. In addition, the respondent inserted "and this and that" which

was another slang term used elsewhere in the interview. This process is no different than

that employed by a reasonable police officer when interviewing a person like the respondent

or a person who either speaks a foreign language or has poor command of English. It is

important to note, however, that the core message, "I should talk to a lawyer,” was relied

upon by the Colorado Supreme Court in its unadulterated and original form. It was merely

the surrounding verbiage and slang that was not considered.

Another of the "circumstances" relied upon by the Colorado Supreme Court was that

the respondent made his request for counsel early in the interviewing process. Pet. app. A-

18. The respondent was advised of his rights, signed a waiver’ and began telling a narrative

of how some people came over to his house and behaved in a threatening way. Pet. app.

C-2, 3. The interviewing officer intervened and asked "so you thought you were defending

yourself when you shot at the car?" Pet app. C-4. It was at this point that the respondent

3 While Colorado correctly states that both the Colorado Supreme Court and the trial

court found that the respondent had validly waived his Miranda rights, it is

noteworthy that, when it came to orally asking the respondent whether he wished to

waive his rights, the transcript is suspiciously silent. See pet. app. C. Investigator

Needham orally advised the respondent of his Miranda rights. Pet. app. C-1. He

twice asked whether the respondent understood his rights, but never asked whether

the respondent wished to waive those rights. Pet. app. C-1, 2. Investigator Needham

represented that "the waiver card, is that I have read the above rights and understand

each of those, is that true?” To which the respondent answered, "Yea." Pet. app.

C-1. Investigator Needham continued, "Okay, having those rights in mind when

answering these questions for us. Okay. Sign for me." Thereafter, Investigator

Needham launched into questioning. Apparently the only indication that the

respondent was willing to waive his Miranda rights was his signing of the “waiver

card.” Pet. app. A-3.

made his request for counsel, which was "within minutes” of his Miranda advisement. Pet.

app. A-18. The Colorado Supreme Court felt this was significant and was in contrast to

Davis where the request for counsel was not made until one and one-half hours into the

interrogation. Pet. app. A-11, 18. The Colorado Supreme Court also observed that the

respondent attempted to bring up the issue later in the interview, but was ignored by

Investigator Needham. Pet. app. A-6.

While the Colorado Supreme Court noted that this Court "encouraged but did not

require clarification of a suspect’s ambiguous reference," (pet, app. A-15) it observed that

Investigator Needham ignored both of the respondent’s references to a lawyer. Pet. app.

A-5, 6, 7, 22. After the respondent made the statement, “I should talk to a lawyer,"

Investigator Needham ignored the request and immediately went back to the discussion of

self-defense. Pet. app. A-S. After the second reference to a lawyer, Needham enticed the

respondent by saying that he originally was going to ask for first degree murder charges, but

based upon the respondent’s willingness to discuss the case, he was "thinking maybe second

[degree murder] or something else.“ Pet. app. A-6. This interviewing technique is to be

contrasted with several of the cases relied upon by Colorado, where subsequent clarifying

* Three days later, the respondent was charged with murder in the first degree and

other offenses. Pet. app. A-7. Further, Investigator Needham admitted that he had

read the Davis case and “purposefully” ignored the respondent’s request. Pet. app.

B-8. Apparently officer Needham was well schooled in the post-Davis style of

interrogation, which encourages interrogating officers to ignore requests for counsel.

5

questions by interrogating officers helped the reviewing court decide whether an

unambiguous request had been made.”

Primarily the Colorado Supreme Court relied upon the actual words spoken by the

respondent. Scrutiny turned to the word "should" which the Court defined as “to express

duty, obligation, necessity, propriety, or expediency," relying upon Webster's Third New

International Dictionary, 2104 (1961). Pet. app. A-23. Accordingly, the respondent was

conveying a “necessity” by saying he should talk to a lawyer. The respondent submits that

the Colorado Supreme Court could not have been more faithful or diligent in its application

of the Davis doctrine and that Colorado’s assertion to the contrary is unsupported by the

record,

ll. THIS COURT SHOULD NOT ABANDON THE TOTALITY OF THE

CIRCUMSTANCES TEST WHEN DETERMINING WHETHER

A REQUEST FOR COUNSEL IS UNAMBIGUOUS.

Colorado apparently argues that the totality of the circumstances test is inappropriate

when determining whether a suspect has made an unambiguous request for counsel.

Colorado makes this argument without citing any authority whatsoever. Apparently,

Colorado is advocating a “words alone" analysis, again without citing authority. Such a claim

is contrary to the dictates of Davis, itself, which required the determination to be made

5 Medina v. Singletary, 59 F.3d 1095 (11th Cir. 1995) (officers’ follow-up questions aided

the court in determining that the defendant hac ~ade an ambiguous request); United

States v. Scurlock, (Sth Cir. 1995)(interrogatimg agent’s subsequent actions and

questions, including osking the defendant again if she wished to talk to the agents,

helped the reviewing court determine from "context" that defendant made an

ambiguous request.); Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994)(officer’s

"affirmative" response to the defendant’s request for counsel important in

determining that defendant did not desire to have an attorney present at that time).

6

under the “circumstances” facing the interrogating officer. Davis, 512 U.S. at 459. That

language was no accident since Edwards itself delineated the standard for determining

whether Miranda rights have been waived.

It is reasonably clear under our cases that waivers of counsel must not only

be voluntary, but must also constitute a knowing and _ intelligent

relinquishment or abandonment of a known right or privilege, a matter which

depends in each case “upon the particular facts and circumstances surrounding

that case, including the background experience and conduct of the accused.

Edwards v. Arizona, 451 U.S. 477, 482 (1981) [quoting

from Johnson v. Zerbst, 304 U.S. 458, 464 (1938)].

The words alone approach is also inconsistent with other judicial determinations made in

the interrogation context. See Schneckloth v. Bustamante, 412 U.S. 218 (1973) (voluntariness

of confession to be determined by the totality of circumstances); North Carolina v. Butler,

441 U.S. 369, 374 (1979)(waiver of Miranda rights to be measured by the “particular facts

and circumstances surrounding the case"); Wyrick v. Fields, 459 U.S.42, 47 (1982) per curiam

(Edwards requires use of the totality of circumstances test when suspect attempts to re-

initiate interview); Fare v. Michael C., 442 U.S. 707, 725 (1979) (waiver of Miranda rights

to be determined by totality of the circumstances). Moreover, several of the cases cited by

Colorado rely upon context and circumstances in determining whether an unambiguous

request has been made.®

® Medina v. Singletary, 59 F.3d 1095 (11th Cir. 1995) (from context the defendant’s

answer of "no" to whether he wished to talk to officers actually meant “yes"); Lord

v. Duckworth, 29 F.3d 1216 (7th Cir. 1994) (from the surrounding "circumstances" the

defendant’s request for counsel was merely a statement that he needed one in the

future); United States v. Scurlock, 52 F.3d 531 (Sth Cir. 1995)(from "context"

defendant’s statement was that she needed an attorney in the future, rather than an

immediate request for counsel).

Finally, Colorado gives us little insight into which of the circumstances should be

ignored in determining whether an unambiguous request has been made. Are the words in

the transcript the sole source? Do we sanitize the respondent’s spoken word of its inflection

and intonation? Do we ignore whether the request was made at the beginning, in the

middle or at the end of interrogation? The Colorado Supreme Court had available to it,

not only the transcript, but also the audio tape of the respondent’s interview, along with the

transcript of the suppression hearing. Pet. app. A-3. Based upon the entire record, the

Colorado Supreme Court found an unambiguous request for counsel.

Colorado’s assertion that the totality of the circumstances test be abandoned, is

supported by no authority, including the lone dissenter in Romero, Justice Mularkey, who

wrote that the totality of the circumstances test was appropriate. Pet. app. A-32.

Ill. THE COLORADO SUPREME COURT HAS NOT JOINED A "MINORITY

OF JURISDICTIONS SEEKING TO UNDERMINE THE DICTATES OF

DAVIS."

Several times in its petition, Colorado baldly claims that the Colorado Supreme Court

has joined a minority of jurisdictions undercutting Davis, in contrast to a majority of other

States and a majority of federal circuits. However, a faithful survey of the jurisdictions

reveals not only that is there is no "minority" or "majority" split, but more importantly, that

each case has been determined upon its own “facts and circumstances" as required by

Edwards and Davis. Colorado’s analysis is flawed because it fails to take into account the

unique circumstances of each case and because it fails to focus upon the cases that were

truly similar to the facts in Romero.

Statements similar to respondent’s "I should talk to a lawyer,” have almost uniformly

been ruled to be unambiguous requests for counsel in other jurisdictions. In Cannady v.

Dugger, 931 F.2d 752 (11th Cir. 1991), the court found the defendant’s statement "I think I

should call my lawyer,” an unequivocal request for counsel.’ See also, Correll v. Thompson,

63 F.3d 1279 (4th Cir. 1995)(defendant said he “thought he wanted an attorney” ruled to be

unambiguous, relying upon Cannady). In Smith v. Endell, 860 F.2d 1528 (9th Cir. 1988), cert.

denied, 498 U.S. 981 (1990), the court found identical words to those used in Romero, “I

should talk to a lawyer," as an unequivocal request for counsel.

The request was not ambiguous; Smith was uncertain whether the troopers

considered him a suspect, but if they did, his intent was clear: “I should talk

to a lawyer.” In this respect his statement was not equivocal; there was no

"might" or “maybe” or “perhaps.”

Smith, 860 F.2d at 1531.

Colorado arbitrarily paints Smith and Cannady into a corner and labels them a

“minority” viewpoint, yet Colorado offers no jurisdictions which have ruled, "I should talk

to a lawyer” as ambiguous requests. Instead, Colorado compares these cases, which are on

7 Mr. Cannady’s request is similar to the second request made in Davis. Davis, 512

U.S. at 455. Mr. Davis’s first request for counsel, "Maybe I should talk to a lawyer,"

was ruled to be ambiguous. However, his second request made later in the interview,

"I think I want a lawyer," precipitated a cessation of the interrogation.

® Colorado summarily dismisses Smith and Cannady because they were decided “pre-

Davis." However, Colorado’s reasoning is flawed. While Davis attached a different

consequence to an ambiguous request for counsel, it did not disturb the calculus of

how courts will determine whether ambiguity exists, nor the long line of cases making

such determinations. The only difference in pre-Davis cases is that some jurisdictions

were requiring interrogating officers to ask clarifying questions when an ambiguous

request was made. The Smith case is extremely reliable as precedent and, in fact,

prophetic, since the court found there were no words of equivocation like "maybe"

preceding the statement, "I should talk to a lawyer." Of course, it was the "maybe I

should talk to a lawyer” which constituted the ambiguous request in Davis.

9

point, with cases from other jurisdictions which are not. For example, Colorado primarily

relies upon State v. Parker, 886 S.W.2d 908 (Mo. 1994), cert. denied, 514 U.S. 1098 (1995).

However, a careful reading of Parker reveals it is of little precedental value. Mr. Parker was

being interviewed by interrogating officers having been Mirandized. After making

incriminating statements, rarker said he “ought to talk to an attorney" which prompted the

officers to leave the room. Within five minutes, Parker opened the door and asked one of

the officers, by name, to return to the room. He was given another Miranda advisement and

made further statements. This prompted the court to observe,

Even if Parker did invoke the right [to counsel], he promptly initiated further

communication by voluntarily calling an officer back into the room. Thus,

there was no Fifth Amendment violation.

Parker, 336 S.W.2d at 918.

Obviously the court was relying upon the language in Edwards which permits further

interrogation, even after a request for counsel is made, when the accused "initiates further

communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-485.

The court in Parker gratuitously added that the word “ought” did not constitute an

unambiguous request for counsel. However, given the totality of the circumstances, the

underlying factual predicate of Parker is extremely dissimilar to that found in Romero.

Investigator Needham did not leave the room when the respondent said that he should talk

to an attorney. Neither did the respondent unilaterally re-initiate conversations with the

police.

Colorado’s reliance on Lord v. Duckworth, 29 F.2d 1216 (7th Cir. 1994) is faulty for

the same reasons. Initially it is important to note that the court in Lord cited with approval

Cannady and Smith. However, the court went on to distinguish those cases based upon the

10

context in which Mr. Lord stated, "I can’t afford a lawyer, but is there any way I can get

one?" The court emphasized that Mr. Lord had already confessed in a lengthy tape

recorded statement and had agreed to assist the police in searching for the murder

weapon.” Furthermore, the court found it important that after Mr. Lord asked if he could

get a lawyer, the interrogating officer answered in the affirmative. Instead of pursuing the

matter, the defendant added, he would also like to see a doctor. Under these

“circumstances” the court correctly found that Mr. Lord was merely referring to his need to

consult with an attorney at a future time.”

The few remaining cases, dubbed by Colorado as the "majority" position, simply are

not helpful in supporting that conclusion. For example, in Diaz v. Senkowski, 76 F.3d 61

(2nd Cir. 1996), the court found the defendant’s statement, "Do you think I need a lawyer?"

an ambiguous request. That request was so different from respondent’s and so facially

ambiguous that it is unclear why Colorado relies upon it. It certainly does not support a

* Colorado relies on several cases where the request for counsel came at the end of

the interrogation rather than, as in this case, in the beginning. See Lord; Diaz v.

Senkowski, 71 F.3d 61 (2nd Cir. 1996)(defendant asked inte: _ogating officers, after

four hours of questioning, "Do you think I need a lawyer"); United States v. Scurlock,

52 F.3d 531 (Sth Cir. 1995)(the defendant gave a lengthy confession, was then told

by the agent she would probably be indicted, which prompted her to say she needed

an attorney).

® Colorado also contends that Lord and Scurlock support its position that respondent

was merely stating that he would need an attorney in the future. However, Lord and

Scurlock are easily distinguishable on their facts. In both cases the alleged request

for counsel came at the end of the interrogation, rather than at the beginning.

Moreover, the respondent’s own words dispel any inference that he was alluding to

the future. He said, "I should wait and I should talk to an attorney.” Obviously the

respondent was stating that he should wait to talk to investigator Needham until he

had a lawyer, thus expressing the immediacy of the situation, rather than the need

for an attorney in the future.

11

finding that a majority/minority split has developed, after Davis. In summary, Colorado

alleges but fails to demonstrate that there is any kind of a split among the juriscictions or

that the Colorado Supreme Court has joined a "minority" of jurisdictions seeking to

"undermine" Davis.

The brief filed by amici suffers from the same maladies. Supporting what it calls the

"majority" position, it relies upon the following ambiguous requests: "Is it going to piss y'all

off if I ask for my -- to talk to a friend that is an attorney?!""; "Do you think I need an

attorney?"; "I might need one. If I need one’; The defendant “would talk to [her]

lawyer tomorrow"; "I'll be honest with you, I am scared to say anything without talking

to my lawyer"; "maybe I should speak with a lawyer; defendant “might need a

lawyer’; "Do I need an attorney?"*"; "What if I ask for an attorney?" These cases

involving obviously ambiguous requests shed little light on the case at bar and do little to

demonstrate the majority/minority split alleged. Other cases cited by amici with seemingly

| Brown v. State, 668 So.2d 102 (Ala. Cr. App. 1995).

2 Higgins v. State, 879 S.W.2d 424 (Ark. 1994).

13 Henry v. State, 462 S.E.2d 737 (Ga. 1995).

4 Luallen v. State, 465 S.E.2d 672 (Ga. 1996).

‘8 Midkiff v. Commonwealth, 462 S.E.2d 112 (Va. 1995).

16 United States v. Menzer, 29 F.3d 1223 (7th Cir. 1994) cert. denied 513 U.S. 1002

(1994).

17 State v. Morgan, 559 N.W.2d 603 (Iowa 1997).

18 State v. Jones, 914 S.W.2d 852 (Mo. App. 1996).

9 State vy. Kennedy, 479 S.E.2d 838 (S.C. App. 1996).

12

less ambiguous requests for counsel, are easily distinguished on their case specific facts and

circumstances. For example, amici rely upon Tucker v. State, 491 S.E.2d 420, 421 (Ga. App.

1997)("I guess I need a lawyer, because I wasn’t even there when that happened”).

However, amici fail to disclose a very important portion of the context of the statement.

Mr. Tucker was asked if he wanted to talk to officers about the charges. Mr. Tucker

responded, "I don’t know what to do. I guess I need a lawyer because I wasn’t even there

when that happened. I was tied up in the attic with ropes.” Under these circumstances, it

was an easy matter for the Georgia court to rule that Mr. Tucker was equivocal and that

guessing he needed a lawyer did not equate to a request for counsel. Amici fail to disclose

equally important information in Parker v. State, 917 P.2d 980, 983 (Oki. Cr. 1996) ("I would

like to talk to an attorney"). The full context of Mr. Parker’s statement reveals his

equivocation. When asked if he would give a statement, he said, "I'll give you some

statements, I would like to talk to an attorney." This equivocation prompted interrogating

officers to ask follow-up questions which revealed to the Oklahoma court that Mr. Parker

was equivocating and that he did want to give "some statements.” Amici also rely upon State

v. Wesley, 691 So.2d 772, 774 (La. App. 1997)("Can I get me a lawyer before I talk? Like

the man said on that thing right there?"). The Louisiana court found the statement to be

equivocal because it was a question, rather than an assertion of his rights. In addition,

interrogating officers asked several times whether the defendant wished to have the

questioning cease. Notwithstanding, the defendant insisted on telling his side of the story.

From these cases, it is easy to determine that amici have not revealed all of the pertinent

facts in the cases they cite. A fair review of those cases indicates that in each instance, the

13

court made a fact-specific determination, based upon all of the circumstances in the case,

in deciding whether a particular request was "ambiguous" or not. That is the same process

that was used by the Colorado Supreme Court in Romero. To the extent amici have placed

partial information before the Court to support their conclusion that a minority of

jurisdictions are eroding Davis, their conclusion is unfounded.

Amici employ the same tactic as Colorado by taking the few cases which have ruled

"I should talk to a lawyer" to be unambiguous, and arbitrarily calling them the "smali but

troubling minority of courts unwilling to apply Davis’ bright line rule." The real failure of

the amici, and for that matter Colorado, is the inability to point to any case that has

language substantially similar to "I should talk to a lawyer," and which is contextually similar

to respondent’s case, where the court found the request to be ambiguous or equivocal. The

respondent’s search of the various jurisdictions reveals no such case. This totally

undermines the allegation that there is a majority/minority application of the Davis doctrine.

Instead, the careful reading of all the cases cited by Colorado and amici results in the

inescapable conclusion that each lower court has conscientiously applied the Davis rule to

the "facts and circumstances" of each case.

CONCLUSION

The Colorado Supreme Court properly articulated the standard in Davis, diligently

applied the totality of the circumstances test to the facts of this case and correctly ruled that

the respondent’s statement "I should wait and I should talk to a lawyer" was an unambiguous

request for counsel. The totality of the circumstances test is the correct measure for

determining whether a person being interrogated has asserted his or her Miranda/Edwards

14

rights. Colorado has failed to demonstrate that the decision in Romero was contrary to

Davis or that Romero is consistent with the "minority" of other jurisdictions which are

seeking to "undermine" the dictates of Davis. Colorado’s petition for a writ of certiorari

should, therefore, be denied.

Respectfully submitted,

a, oA

G. Paul McCormick, Jr.

Counsel of Record

McCormick & Christoph, P.C.

1406 Pearl Street, Suite 200

Boulder, Colorado 80302

(303) 443-2281

Counsel for Respondent

15

No. 97-1688

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

THE STATE OF COLORADO,

Petitioner,

VS.

MARIO ROMERO,

Respondent.

On Petition for Writ of Certiorari to

The Supreme Court of the State of Colorado

CERTIFICATE OF SERVICE

I, G. Paul McCormick, Jr., a member of the Bar of this Court, hereby certify that on

this 30th day of July, 1998, one copy of Respondent’s Srief in Opposition in the above-

entitled case, was mailed First Class Postage prepaid to the following:

John Daniel Daily

Counsel of Record

Colorado Attorney General’s Office

1525 Sherman Street, Sth Floor

Denver, Colorado 80203

I further certify that all parties required to be served have been served.

Tell iw

G: Paul McCormick, Jr.

Counsel for Respondent