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In The

Supreme Court of the United States

October Term, 1992

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STATE OF TENNESSEE,

Petitioner,

vs.

MELVIN CRUMP,

Respondent.

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Petition For Writ Of Certiorari

To The Supreme Court Of Tennessee

¢

SUPPLEMENTAL APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

¢

CHARLES W. Burson

Attorney General & Reporter

Counsel of Record

JOHN KNox WaALKup

Solicitor General

GorpDon W. SMITH

Deputy Attorney General

KaTtHy M. PRINCIPE

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0485

(615) 741-3487

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO, oo 225-6964

OR CALL COLLECT (402) 342-

App. 21

SUPPLEMENTAL APPENDIX A

MINUTES, MAY TERM, 1ST DAY OF JUNE, 1989

MINUTE BOOK 31, PAGE 755

STATE OF TENNESSEE, MOTION TO

PLAINTIFF, SUPPRESS

VS STATEMENTS

MELVIN CRUMP, 88-F-2144

DEFENDANT. 88-F-2146

ORDER GRANTING

MOTION TO

SUPPRESS

STATEMENTS. STATE

GRANTED LEAVE

TO FILE

INTERLOCUTORY

A.’PL.

ORDER ON MOTION TO SUPPRESS STATEMENTS

For the reasons stated in the Court’s Memorandum

Opinion dated May 25, 1989, defendant’s Motion to Sup-

press Statements is hereby GRANTED, and the evidence

of oral and tape recorded statements is hereby excluded

from evidence pursuant to Miranda v. Arizona, 384 U.S.

436 (1966) and progeny. For the reasons further stated in

the said Memorandum, the State is granted leave to file

an interlocutory appeal for the reasons expressed in Rule

App. 22

9(a)(1) and (3) and according to the terms described in

said Memorandum.

This the 1 day of June, 1989.

/s/ Walter C. Kurtz

WALTER C. KURTZ

JUDGE

APPROVED FOR ENTRY:

SEARCY, SMITH & DAWSON

By: /s/ Donald E. Dawson

Donald E. Dawson

No. 10723 .

808 Broadway, Third Floor

Nashville, TN 37203

(615) 726-0684

NEAL & HARWELL

By: /s/ Edmund L. Carey, Jr.

Edmund L. Carey, Jr.

No. 12013

2000 One Nashville Place

150 Fourth Avenue North

Nashville, TN 37219-2417

(615) 244-1713

Ordered that Court stand adjourned until morning at

nine o’clock.

/s/ WALTER C. KURTZ JUDGE

App. 23

SUPPLEMENTAL APPENDIX B

IN THE FIFTH CIRCUIT COURT

FOR DAVIDSON COUNTY, TENNESSEE

STATE OF TENNESSEE

VS.

MELVIN CRUMP

) NO. 88-F-2146

88-F-2144

(Filed May 25, 1989)

MEMORANDUM

This defendant is charged in case 88-F-2146 with one

count of first degree murder and one count of armed

robbery. In a second indictment, 88-F-2144, he is charged

with escape from the Department of Correction.

The defendant has filed a motion to suppress certain

oral and tape recorded statements made by the defendant

subsequent to his arrest on these charges. The defendant

alleges a violation of Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602 (1966). He further alleges a violation of the due

process provisions of both the state and federal constitu-

tions in that he contends the statements were taken from

him as a result of threats and physical assaults by law

enforcement officers. See Brown v. Mississippi, 297 U.S.

278, 56 S.Ct. 461 (1936).

The Court heard evidence on these motions on May

3, 1989, and again on May 5, 1989, and the matter was

taken under advisement. Defense counsel have filed

extensive briefs in support of their positions. The State

declined to file a brief in support of its position, but cited

the court to several cases.

App. 24

The Court heard proof from a number of police offi-

cers, several civilian witnesses, and heard the testimony

of the defendant.

The Court will attempt to set forth its findings of fact

as succinctly as possible. The defendant was arrested on

September 27, 1988, at a private residence here in David-

son County some time between noon and 1:00 P.M. Partic-

ipating in the arrest were a number of detectives;

Sergeant Robert Moore, Detective Grady Elam, Detective

Mike Smith, Detective Ed Moran, Detective Terry

McElroy, and several uniformed patrol officers. Upon

being arrested, the defendant was placed in a police

automobile and Detective Grady Elam proceeded to

inform the defendant of his Miranda rights. Using a Mir-

anda card (Exhibit 4), which he carried with him, he

stated as follows:

1. You have the right to remain silent.

2. Anything you say can and will be used

against you in a court of law.

3. You have the right to talk to a lawyer and

have him present with you while you are being

questioned.

4. If you cannot afford a lawyer, one will be

appointed to represent you before any question-

ing if you wish one.

5. You have the right to stop answering ques-

tions at any time.

Detective Elam then turned the card over and read

the waiver questions from the back of the card. He first

asked the defendant if he understood his rights. The

defendant responded in the affirmative. The defendant

App. 25

was then asked if he wanted a lawyer. The defendant

responded in the negative. Then Detective Elam said,

“having these rights in mind, do you wish to talk to us

now?” The following testimony from Detective Elam

describes the answer.

And I don’t remember exactly what he said, it

was either I don’t have anything to say right

now, or I don’t have anything to say. I’m not

exactly sure what the wording was, but he

didn’t have anything to say to me.

Having received this answer, Detective Elam asked

no further questions, but did tell the defendant that they

were investigating a murder. The defendant responded

that he didn’t have anything to do with any murder.

Detective Elam made no further comments.

Another officer returned from the apartment where

the defendant was arrested and asked Detective Elam if

the defendant had been given his Miranda rights. Elam

responded that he had, but did not tell this other officer,

Sergeant Robert Moore, that the defendant did not want

to make a statement. Moore and Elam got in the car with

the defendant and drove him to police headquarters.

Upon reaching police headquarters, Moore decided that

he would question the defendant; and that instead of

booking the defendant and taking him before a magis-

trate, he would drive the defendant to several locations

related to the investigation of the murder. Moore asked

the defendant if he would accompany him in his auto-

mobile and the defendant said yes. Although the defen-

dant had been brought to police headquarters, he was not

removed from the police automobile. Moore and two

App. 26

other detectives got in the automobile with the defen-

dant, left police headquarters, and went to several loca-

tions related to the investigation of the murder. Sergeant

Moore took the defendant for a ride in order to elicit

incriminating statements from the defendant. This is

interrogation. See Rhode Island v. Innis, 446 U.S. 291, 100

S.Ct. 1682, 1689-90 (1980).

Detective Mike Smith, who was also in the auto-

mobile, did most of the talking because he had good

“rapport” with the defendant. Smith had also been one of

the arresting officers. During this ride, the defendant was

asked questions regarding certain events related to his

escape and the murder. The defendant responded with

answers that were inculpatory.

it was during this ride that the defendant claims that

he was taken to a remote location in Davidson County

and beaten by all three officers. The Court finds no val-

idity to the defendant’s claim that he was threatened and

beaten. His testimony is not credible, and the Court

credits the testimony of the officers that the defendant

was not threatened and beaten.

The ride in the police car lasted about forty-five

minutes. The defendant was then returned to police head-

quarters for further questioning. He was taken to an

office, and with Detective Elam and Detective Smith, was

for the second time given his Miranda warnings. At

approximately 2:45 P.M., the defendant was read his Mir-

anda rights by Detective Smith and signed a written

waiver (Exhibit 1). The written waiver was read to the

defendant before he signed it. The defendant was asked

“what level of education do you have,” and he responded

' App. 27

“none.” Even though the defendant testified at the evi-

dentiary hearing, the State never pursued the question of

his education, and the Court concludes that the defen-

dant is a person of very limited education.

During the reading of the waiver, the defendant

attempted to make a comment. The defense insists that

this was an attempt by the defendant to invoke his right

to an attorney, and that the defendant stated “I want one

now.” The State, on the other hand, contends that the

defendant said “I don’t want none.” The Court has lis-

tened several times to the tape of this conversation

(Exhibit 3), and concludes that it cannot be determined

from the tape what was said by the defendant. However,

this Court credits the testimony of Detective Elam that

the defendant responded by saying “I don’t want none.”

This is further corroborated by the defendant’s subse-

quent actions. The court finds that the defendant did not

request counsel.

The defendant made a statement which was tape

recorded and transcribed (Transcript-Exhibit 2). The

defendant was then taken before a magistrate some time

between 3:30 P.M. and 4:00 P.M.

The Supreme Court held in Miranda that the police

must follow certain guidelines when conducting custo-

dial interrogations in order to protect the constitutional

rights of the suspect. Under Miranda the police must not

only give the suspect a familiar set of warnings, but they

also must “scrupulous [sic] honor” the suspect's right to

cut off questioning. As the Miranda court emphasized “if the

individual indicates in any manner at any time prior to or

App. 28

during questioning that he wishes to remain silent, the

interrogation must cease.” Miranda supra at 1627.

In this case, the defendant did invoke his right to

remain silent. A prior Tennessee case holds that almost

identical language invokes the right to remain silent. See

O’Brien v. State, 221 Tenn. 346, 426 S.W.2d 507, 508 (1968)

(“I have nothing to say at this time”). See also Christopher

v. Florida, 824 F.2d 836, 841-42 (11th Cir. 1987) cert. denied

108 S.Ct. 1057 (“I got nothing else to say” is unequivocal);

State v. Klimczak, 268 A.2d 372 (Conn. 1970) (“don’t bother

me” indicates assertion of right to remain silent); People v.

Carey, 227 Cal.Rptr. 813, 814-15, 183 Cal. App. 3d, 99 (2d

Dist. 1986) (suspect’s statement “I ain’t got nothing to

say” was an invocation of right to remain silent).

In Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321 (1975),

the Supreme Court explored in greater detail the scope of

the suspect’s right to cut off questioning:

A reasonable and faithful interpretation of the

Miranda opinion must rest on the intention of

the Court in that case to adopt “fully effective

means . . . to notify the person of his right of

silence and to assure that the exercise of the

right will be scrupulously honored... .” 384

U.S., at 479, 86 S.Ct., at 1630. The critical safe-

guard identified in the passage at issue is a

person’s “right to cut off questioning.” Id., at

474, 86 S.Ct., at 1627. Through the exercise of his

option to terminate questioning he can control

the time at which questioning occurs, the sub-

jects discussed, and the duration of the inter-

rogation. The requirement that law enforcement

authorities must respect a person’s exercise of

that option counteracts the coercive pressures of

App. 29

the custodial setting. We therefore conclude that

the admissibility of statements obtained after

the person in custody has decided to remain

silent depends under Miranda on whether his

“right to cut off questioning” was “scrupulously

honored.”

Id. at 326.

In Mosely the Supreme Court decided that while there

was no absolute bar against subsequent questioning of

the suspect who had invoked the right to remain silent,

the admissibility of any statement solicited by subsequent

questioning depends upon whether the invocation of the

right to remain silent was “scrupulously honored.” Id. at

326. The facts in Mosely supported the conclusion that

defendant’s right had been scrupulously honored: the

police ceased the initial interrogation, resumed question-

ing only after a significant period of time and the provi-

sion of a fresh set of warnings, and restricted the second

_ interrogation to a crime that had not been the subject of

the earlier interrogation, i.e., one that Mosely had not

previously declined to discuss. Id. at 327-28.

Applying the principles of Miranda and Mosely to the

facts of the instant case, the Court must conclude that

Crump’s right to cut off questioning was not “scru-

pulously honored” during his interrogation on September

27, 1988. The defendant having invoked his right to

remain silent, was transported to police headquarters;

yet, within twenty minutes, he was taken away ina police

car with three other officers and questioned during a

forty-five minute automobile ride. Then returning to

police headquarters he was given Miranda warnings and,

App. 30

subsequently, made a taped statement. The taped state-

ment merely followed the subject matter of the state-

ments previously made by the defendant during his

automobile ride. This is not the “scrupulously honored”

provision envisioned by the Supreme Court in Miranda

and Mosely.

The State can make several arguments in an effort to

provide for the admissibility of the taped statement taken

at police headquarters. The State might argue that

although the defendant did invoke his right to remain

silent, he subsequently made “voluntary” statements in

response to police interrogation. This argument is appro-

priately refuted by the following passage from a decision

of the United States Court of Appeals for the Eleventh

Circuit:

The state .. . argues that we should affirm the

district court’s determination that Christopher

did not adequately assert his right because he

“voluntarily” continued the interrogation. 582

F.Supp. at 644.

The state cannot prevail in this argument, how-

ever. Contrary to the district court’s holding, a

suspect’s claim that the police violated his right

to silence by failing to immediately terminate

the interrogation, is not negated by the fact that

the suspect answered additional questions after

the police failed to scrupulously honor his

request to end questioning. See Martin, 770 F.2d

at 923-24; Hernandez 574 F.2d at 1369. “[A]n

accused’s post-request response to further inter-

rogation may not be used to cast retrospective

doubt on the clarity of the initial request itself.”

Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490,

App. 31

495, 83 L.Ed.2d 488 (1984). The fact that Christo-

pher continued to speak, therefore, has no bear-

ing on his claim that he invoked, and the police

failed to honor, his right to remain silent.

Christopher v. Florida, 824 F.2d 836, 841 (11th Cir. 1987),

cert. denied 108 S.Ct. 1057.

The State may further argue that the giving of a

second set of Miranda warnings, and the defendant's

waiver of his rights, would allow for the admissibility of

the second statement given at police headquarters. In a

lengthy decision involving facts remarkably similar to the

facts in this case, the Supreme Court of New Jersey in the

case of State v. Hartley, 511 A.2d 80 (N.J., 1986)

thoughtfully analyzed all the authorities and principles

governing this issue. The New Jersey Court concluded

that the police having failed to have “scrupulously hon-

ored” the defendant’s right to remain silent, a second

confession must be suppressed; even though Miranda

warnings were given. In reaching this Court’s conclusion

in this case, it relies heavily on the reasoning of and the

authorities cited in the Hartley case.!

Defendant Hartley was arrested for murder and was

given Miranda warnings in response to which he asserted

his right to remain silent. Subsequently, he was ques-

tioned by F.B.I. agents but not given Miranda warnings. In

response to questioning by the F.B.I. agents, the defen-

dant made certain inculpatory statements. Almost imme-

diately after making the statements to the F.B.I. agents,

1 Of special interest is the analysis of the inapplicability of

Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285 (1985). Hartley,

supra, at 91-93.

App. 32

the defendant was questioned by state authorities who

did give him Miranda warnings. The defendant repeated

the statement which he had given to the F.B.I. agents. The

Court concluded as follows:

. we determine that a police failure scru-

pulously to honor an accused’s earlier invoked

right to silence amounts to a violation not sim-

ply of Miranda’s prophylactic rules but of the

accused’s privilege against self-incrimination.

Therefore, any statement that a suspect may

make after his right to silence has not been

scrupulously honored is unconstitutionally com-

pelled as a matter of law. That circumstance in

turn requires a close examination of the relation-

ship between the first statement and any subse-

quent statement.

We conclude that in this case the federal author-

ities’ failure scrupulously to honor defendant's

announced intention not to make a statement

requires the exclusion, on the State’s case, not

only of the defendant’s confession to agents of

the Federal Bureau of Investigation (FBI) but

also of defendant’s second statement, made to

state and municipal authorities. This result is

compelled either (1) because the second state-

ment was obtained through a process that was

in fact part of the same illicit procedure that

produced the first statement, or (2) because it

was the product of an unconstitutional inter-

rogation — and this despite the readministering

of Miranda warnings to defendant before the

second statement. Finally, we base the above

: determinations not only on our understanding

of the United States Supreme Court precedents

in this area but on independent state grounds of

decision as well.

Id. at 82.

App. 33

The critical factor in this case is that the police did

not “scrupulously honor” the defendant’s invocation of

his right to remain silent. If the police had “scrupulously

honored” the defendant’s right to remain silent, then

after the passage of the significant period of time, they

could have interrogated him after a renewed Miranda

warning and waiver. See, e.g., Jackson v. Dugger, 837 F.2d

1469 (11th Cir. 1988); See generally Lafave & Israel, Crimi-

nal Procedure, § 6.9 (g) (1984). In this case, however, the

police did not “scrupulously honor” the defendant's right

to remain silent, but continued to question the defendant.

Therefore, the statements taken must be suppressed.

Does it make any difference that Sergeant Moore,

who questioned the defendant during the automobile

ride may not have known that the defendant invoked his

right to remain silent? The Court believes that it makes

no difference. The Supreme Court has dealt with this

issue in the analogous situation where a defendant

invokes his right to an attorney after receiving Miranda

warnings. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.

1880 (1981), the Court held that a suspect who has

expressed his desire to deal with the police only through

counsel is not subject to further interrogation by the

authorities until counsel had been made available to him,

unless the accused himself initiates further communica-

tion, exchanges, or conversation with the police. In a

subsequent case, Arizona v. Roberson, 486 U.S. __, 108

S.Ct. 2093 (1988), the State attempted to distinguish

Edwards by arguing that a second officer who interro-

gated Roberson did not know that Roberson had invoked

his right to counsel. The Court responded as follows:

App. 34

Finally, we attach no significance to the fact that

the officer who conducted the second interroga-

tion did not know that respondent had made a

request for counsel. In addition to the fact that

Edwards focused on the state of mind of the

suspect and not of the police, custodial inter-

rogation must be conducted pursuant to estab-

lished procedures and those procedures in turn

must enable an officer who proposes to initiate

an interrogation to determine whether the sus-

pect has previously requested counsel. In this

case respondent’s request had been properly

memorialized in a written report but the officer

who conducted the interrogation simply failed

to examine that report. Whether a contemplated

reinterrogation concerns the same or a different

offense, or whether the same or different law

enforcement authorities are involved in the sec-

ond interrogation, the same need to determine

whether the suspect has requested counsel exist.

The police department’s failure to honor that

request cannot be justified by the lack of dili-

gence of a particular officer. Cf., Giglio v. United

States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31

L.Ed.2d 104 (1972).

Id. at 2101. No less can be said for this situation. Even

though Detective Elam may not have told Sergeant Moore

that the defendant had invoked his right to remain silent,

the State cannot rely on that fact to circumvent the hold-

ing of Miranda.

This Court concludes as follows:

1. The defendant invoked his right to remain silent

and for reasons expressed above, as well as in the case of

State v. Hartley, supra, both the oral statement in the

App. 35

automobile and the taped statement at police headquar-

ters must be suppressed.

2. The defendant did not request an attorney.

3. The defendant was not threatened or beaten and,

therefore his statements were not taken in violation of

due process principles of the federal or state constitu-

tions.

Mr. Carey will please draw the appropriate order

granting the motion to suppress for the reasons expressed

in this memorandum.

Suppression of this evidence will substantially impair

the State from prosecuting this case, therefore, pursuant

to Rule 9 TRAP, the State is granted an interlocutory

appeal for the reasons expressed in Rule 9(a)(1) and (3). If

the State’s attorney desires to appeal, he should submit

App. 36

an order for signature within ten (10) days of this Court

signing the order submitted by Mr. Carey.

xc:

This the 25 day of May, 1989.

/s/ Walter C. Kurtz

WALTER C. KURTZ

JUDGE

Edmund L. Carey, Jr.

Neal & Harwell

One Nashville Place, 20th Floor

150 Fourth Avenue North

Nashville, TN 37219-2417

Don Dawson

Attorney at Law

808 Broadway

Nashville TN 37203

John Zimmermann

Floyd Price

Assistant District Attorneys

102 Metro Courthouse

Nashville, TN 37201

App. 37

SUPPLEMENTAL APPENDIX C

IN THE FIFTH CIRCUIT COURT OF DAVIDSON

COUNTY, TENNESSEE MINUTES, MAY TERM, 12TH

DAY OF JULY, 1989

MINUTE BOOK 32, PAGE 368

WEDNESDAY. JULY 12, 1989

Court met pursuant to adjournment, present and pre-

siding the Honorable Walter C. Kurtz, Judge of the Fifth

Circuit Court of Davidson County, Tennessee, when the

following proceedings were had, to-wit:

STATE OF TENNESSEE MOTION TO

VS SUPPRESS

, STATEMENTS

88-F-2144

88-F-2146

ORDER RE:

MOTION TO

RECONSIDER

FACTUAL

FINDINGS.

MELVIN CRUMP

ORDER

This cause came on to be heard before the Honorable

Walter C. Kurtz, Judge, upon the motion to reconsider

factual findings as set forth in its Memorandum Opinion

of May 25, 1989. After due consideration and stipulation

by counsel for the defendant, the Court is of the opinion

that “nine” years of education shall be substituted in the

record as the defendant’s educational level rather than

“none”.

App. 38

It is therefore ORDERED that “nine” shall be substi-

tuted in the record for “none” as it refers to the defen-

dant’s educational level.

Entered this 12 day of July, 1989.

/s/ Walter C. Kurtz

WALTER C. KURTZ

JUDGE

APPROVED FOR ENTRY:

/s/ Floyd N. Price

Floyd N. Price

Assistant District

Attorney General

102 Metro Courthouse

Nashville, Tn. 37201

862-5500

Reg. No. 6475

Ordered that Court stand adjourned until morning at

nine o’clock.

/s/ WALTER C. KURTZ, JUDGE

App. 39

SUPPLEMENTAL APPENDIX D

IN THE COURT OF CRIMINAL APPEALS OF

TENNESSEE AT NASHVILLE

SEPTEMBER SESSION, 1989

STATE OF TENNESSEE

APPELLANT

V.

MELVIN CRUMP

APPELLEE

FOR THE APPELLANT:

Charles W. Burson

Attorney General

450 James Robertson

Parkway

Nashville, Tenn. 37219

Kathy M. Principe

Assistant Attorney

General

450 James Robertson

Parkway

Nashville, Tenn. 37219

Victor S. Johnson, III

District Attorney General

102 Metro Courthouse

Nashville, Tenn. 37201

John Zimmerman

Asst. District Attorney

General

102 Metro Courthouse

Nashville, Tenn. 37201

me me ee ee ee ee ee eee”

NO. 89-194-III

DAVIDSON COUNTY

HON. WALTER C.

KURTZ, JUDGE

(Grant of Motion to

Suppress)

(Filed Apr. 25, 1990)

FOR THE APPELLEE:

Donald E. Dawson

Searcy, Smith & Dawson

Attorneys at Law

Third Floor, 808 Broadway

Nashville, Tenn. 37203

Edmund L. Carey, Jr.

Neal & Harwell

Attorneys at Law

2000 One Nashville, Place

150 Fourth Avenue North

Nashville, Tenn. 37219

App. 40

REVERSED AND REMANDED

OPINION FILED: APR 25 1990

JERRY SCOTT, JUDGE

OPINION

This is an interlocutory appeal by the state pursuant

to Rule 9, T.R.A.P., by which the state has appealed the

order of the trial court suppressing the_appellant’s con-

fession.

On September 27, 1988, the appellant was arrested

for escape from the Tennessee State Penitentiary where he

was serving time for murder. At the time of his arrest he

was also a suspect in the murder and rape of an elderly

woman. The arrest occurred between 10:00 A.M. and 1:00

P.M., at 1190 Eleventh Avenue South in Nashville, after

the police received a tip as to where he was staying. After

he was arrested he was placed in the front seat of a police

car. Grady Elam, a detective with the Metropolitan Police

Department, advised him of his rights. The appellant

responded that he understood his rights and did not

want an attorney. When asked whether he wanted to

make a statement, the appellant said either “I don’t have

anything to say” or “I don’t have anything to say right

now.” Mr. Elam asked the appellant no questions, but did

tell him that they were investigating the murder and the

appellant said, “I don’t know anything about that.”

The officers took the appellant to the police head-

quarters where Mr. Elam went inside to do the paper-

work concerning the appellant’s apprehension. Robert

Moore of the Metropolitan Police Department had been

present at the time of the appellant’s apprehension. After

App. 41

they arrived at headquarters, he decided to take the

appellant back to the scene where he was apprehended,

which was one to one and half blocks from the murder

scene. The purpose of this trip was to try to get the

appellant to give a statement regarding the murder. He

asked the appellant if “he would ride the escape route

with him,” and the appellant agreed to do so. Two detec-

tives and a Mr. Moran got in the car with the appellant

and Mr. Moore and rode with them.! Mr. Moore heard

Mr. Elam advise the appellant of his rights, but he did not

know that the appellant had invoked his rights. No force

or coercion was used against the appellant during the

ride and the appellant even “nodded off” to sleep as they

rode. According to Sergeant Moore, the appellant was not

under the influence of drugs, but just appeared disin-

terested. The trip took approximately thirty minutes, and

Mr. Smith asked most of the questions in the car.

They first drove to the day care center where the

appellant had escaped from a painting detail. The appel-

lant then retraced his escape route from the work detail.

They stopped at the Maxwell House Hotel and he was

asked if he had taken anything out of a car at the hotel.

He admitted taking items from the car but said he had

thrown them away. Mr. Moore told him that the items

from the car were found in the murder victim’s home, but

the appellant made no response to that statement.

The appellant testified that during this riding around

he was taken to a remote location where the police beat

1 While Mr. Moran testified, he was referred to throughout

the record as “Officer Moran” and his given name does not

appear.

App. 42

him until he confessed. The trial judge found no validity

to that claim and there were witnesses who saw him soon

after his return to custody, who testified that, in spite of

his statement that he’d been beaten, they found no evi-

dence that his allegation was true.

At the conclusion of the riding around they returned

to the police headquarters were the appellant was taken

to an office for questioning. The questioning was tape

recorded, beginning at 2:40 P.M. Mr. Smith gave the

appellant his Miranda warnings. The appellant inter-

rupted during the Miranda warning, but, according to Mr.

Smith, the interruption had nothing to do with the warn-

ing. The interruption was not transcribed and Mr. Smith

could not remember exactly what the appellant said.

After being advised of his right to an attorney, the appel-

lant interrupted and, according to Mr. Smith, said, “I

don’t want nairen.” Mr. Smith testified that the word

“nairen” is a southern slang term for “none.” The appel-

lant testified that what he said on the tape was, “I want

one now.” The judge found that it was impossible to

discern from the garbled statement on the tape what was

actually said, but he accredited Mr. Elam’s statement that

the appellant said he didn’t want “nairen.”?

2 We have listened intently to the tape and we agree with

the trial judge that it is difficult to hear exactly what the

appellant said. From our examination, we believe Mr. Elam

was correct when he testified the appellant said he didn’t want

“nairen.” That term is defined as “never a one,” Halliwell-

Phillips, et al., Dictionary of Archaic and Provincial Words, (1847),

or as “nothing,” Wright, ed.,-The English Dialect Dictionary

(1898).

App. 43

The appellant testified that he had been arrested

more than seven times since 1980, that his rights had been

read to him on more than seven occasions, and that he

knew his rights.

After the Miranda warnings, the appellant read and

signed a waiver of his rights, then gave a full confession,

which was tape recorded.

The appellant moved that his confessions be sup-

pressed, both his statements in the car and his tape

recorded statement. The state conceded that it would not

attempt to introduce the statements given in the car, but

argued that the tape recorded statement should be admit-

ted, since he was given fresh Miranda warnings. The trial

court ordered that the taped statement also be sup-

pressed. In so doing, the trial judge filed an excellent

memorandum of law, setting forth his reasoning and the

cases from the United States Supreme Court and other

courts upon which he relied.

In determining whether the tape recorded confession

was properly suppressed, we must engage in a two prong

analysis. First, it must be determined whether the police

“scrupulously honored” the appellant’s invocation of his

3 The trial judge first found that when asked what level of

education he had, the appellant replied “none.” Actually, he

replied “ninth,” obviously referring to the ninth grade and the

trial judge filed an order correcting that error. The trial judge

found that the appellant is a person “of very limited educa-

tion.” We disagree. It is clear from the record, including the

appellant’s testimony at the hearing on the motion, that th.

appellant is very street-wise and understands the legal system

quite well, including the Miranda warnings and their meaning.

App. 44

right to remain silent. If a violation is found, the second

prong of the analysis requires that we determine whether

the violation was of constitutionai dimension or merely a

violation of the prophylactic rules set out in Miranda v.

Arizona, 384 U.S. 436,86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

If the violation was merely one of a prophylactic rule, it

was cured by the second Miranda warning and the issue

must be whether the statement was voluntary. In Oregon

v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84

L.Ed.2d 222 (1985), the Supreme Court noted that errors

by law enforcement officers in administering the pro-

phylactic Miranda procedures “should not breed the same

irremediable consequences as police infringement of the

Fifth Amendment itself,” and a simple failure to follow

Miranda, “unaccompanied by any actual coercion or other

circumstances calculated to undermine the suspect's abil-

ity to exercise his free will” will not so taint the investiga-

tory process that a subsequent voluntary and informed

waiver will be ineffective for some indeterminate period.

The admissibility of any subsequent statement should

turn “solely on whether it is knowingly and voluntarily

made.” One court has noted that a second statement

coming “on the heels of — if not in tandom with - the first,

unconstitutionally obtained, compelled statement was

unavoidably tainted” and “chameleon-like retains the col-

oration of the first as a matter of law.” State v. Hartley, 103

N.J. 252, 511 A.2d 80, 97 (1986).4

4 This is the case upon which the trial court relied in

excluding the taped confession. The holding was subsequently

limited to its facts and deemed not applicable when the defen-

dant reinitiates communication with the police. State v. Fuller,

231 N.J. Super 66, 554 A2d 1364, 1367 (1989).

App. 45

The Fifth Amendment of the United States Constitu-

tion provides that no person “shall be compelled in any

criminal case to be a witness against himself.” Through

the Fourteenth Amendment this provision is applicable to

the states. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 1492,

12 L.Ed. 653 (1964).

In the famous case of Miranda v. Arizona, supra, the

United States Supreme Court set forth the warnings that

must be given before interrogation of one who is in

custody. Once the warnings are given, an indication by

the suspect that he wishes to remain silent stops the

interrogation. Of course, the word “interrogation” refers

not only to express questioning, but also to “any words or

actions on the part of the police” that the officers should

know are “reasonably likely to elicit an incriminating

response from the suspect.” Rhode Island v. Innis, 446 U.S.

291, 301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297 (1980).

Of course, it is clear from the facts of this case that

Sergeant Moore anticipated that the riding around would

elicit a confession. He candidly testified that was his

purpose for the trip, and he obviously initiated it when

he asked the appellant if he would accompany them.

In Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321,

326, 46 L.Ed.2d 313 (1975), the Supreme Court set forth

the test to determine whether statements taken after the

invocation of the right to remain silent are admissible.

Admissibility depends on whether the suspect's “right to

cut off questioning” was “scrupulously honored.” In

Mosley, the defendant was advised of his rights and he

invoked his right to remain silent. Two hours later, he

was questioned by different officers at another location

App. 46

about a different crime after again being fully advised of

his Miranda rights. Id., 96 S.Ct. at 327.

The Supreme Court found that his rights were scru-

pulously honored, noting that the officers immediately

ceased the interrogation after the rights were invoked,

questioning was resumed only after a significant amount

of time had passed, Mr. Mosley was readvised of his

Miranda rights and the second interrogation was

restricted to a different crime. Id., 96 S.Ct. at 327. Whether

all of the factors cited by the Supreme Court in Mosley are

required in every case has been an issue debated in the

courts. See, e.g.: State v. Hartley, supra (minimum require-

ment is furnishing fresh Miranda warnings before resum-

ing custodial interrogation); United States v. Terry, 702

F.2d 299, 317-318 (2d Cir. 1983) (forty minute recess, fresh

Miranda warnings and a scrupulous respect for defen-

dant’s right made noncoerced statement admissible); and

United States v. Maddox, 413 F.Supp. 60, 65-66 (W.D. Okla.

1976) (statement inadmissible where the police reinterro-

gated about the same offense).

It is clear that the police did not scrupulously honor

the appellant’s right to remain silent during the riding

around interrogation. Sergeant Moore knew that the

appellant had been advised of his rights, but did not

attempt to learn whether he had invoked his rights. (He

testified he heard Mr. Elam read the appellant his rights,

but did not testify concerning whether he heard the

appellant’s response). The purpose of the trip was to get

a confession and none of the safeguards set forth in

Mosley were present.

App. 47

It is clear that the statements made in the car were

inadmissible and the state is not seeking their admission.

However, the events in the car must be considered in

determining the admissibility of the taped statement. It is

worthy of note that the trial judge did not believe the

defendant’s statements that he was beaten, and there is

no indication that there was any coercion either to get the

appellant to ride with the officers or during the ride.

In Michigan v. Tucker, 417 U.S. 433, 434, 94 S.Ct. 2357,

2564, 41 L.Ed.2d 82 (1974), the Supreme Court found that

the Miranda warnings are prophylactic rules not constitu-

tional requirements.5 In Oregon v. Elstad, 470 U.S. 290, 105

S.Ct. 1285, 1296, 84 L.Ed.2d 222 (1985), the Supreme Court

held that “(a) subsequent administration of Miranda

warnings to a suspect who has given a voluntary but

unwarned statement ordinarily should suffice to remove

the conditions that precluded admission of the earlier

statement,” since the fact finder may reasonably conclude

that he made a “rational and intelligent choice whether to

waive or invoke his rights.” The United State Supreme

Court has not dealt directly with the issue of whether the

Elstad rule would apply to a situation where the defen-

dant was previously warned, invoked his right to silence,

but the officers ignored the invocation. In Elstad, the

Supreme Court made it clear that the question in cases

concerning admissibility where the Fifth Amendment

5 Tucker involved pre-Miranda questioning in which the

officers failed to advise the defendant of his right to appointed

counsel “free of charge” if he could not afford to retain coun-

sel. (His trial occurred after Miranda.) 94 S.Ct. at 2360.

App. 48

right to silence is involved is whether the confession is

free and voluntary.

In Elstad, the defendaht made incriminating state-

ments at the scene of the arrest as a result of interroga-

tion, but prior to any Miranda warnings being given.

Subsequently, the defendant was given his warnings at

police headquarters and then made a full confession. Id.,

105 S.Ct. at 1289-1290. In that case the court held that the

proscription against compelled testimony is “fully satis-

fied” by barring the use of the unwarned statement. 105

S.Ct. at 1298. The court concluded that no further pur-

pose is served by imputing “taint” to subsequent state-

ments obtained pursuant to a voluntary and knowing

waiver. The court noted that the fact that “a suspect

chooses to speak after being informed of his rights is, of

course, highly probative.” Id., 105 S.Ct. at 1298.

Thus, the question in this case is whether the tape

recorded confession was voluntarily given or whether it

was the product of coercion. Frankly, it doesn’t even

appear that the statement given in the car was the prod-

uct of any coercion. That statement was, in our opinion,

also voluntary, but was given after the appellant stated he

invoked his right to remain silent.®

6 As Justice O’Connor observed in Elstad, “(w)hen neither

the initial nor the subsequent admission is coerced, little justi-

fication exists for permitting the highly probative evidence of a

voluntary confession to be irretrievably lost to the factfinder.”

105 S.Ct. at 1295.

App. 49

The trial court relied on State v. Hartley, supra, and

Christopher v. Florida, 824 F.2d 836 841 (11th Cir. 1987).7 Of

course, those cases are persuasive authority only and are

not binding on this Court. -

In this case it is clear that the statements given at the

tape recorded interview were entirely voluntary. The offi-

cers described the relatively comfortable setting in which

the statement was given in an office at the police head-

quarters. -The tape recording reveals the giving of the

Miranda warnings, the appellant’s response thereto and

the extensive and detailed confession that he gave after

being warned. While not a high school graduate, the

defendant is anything but illiterate. He had a prior mur-

der case in 1983 and testified that since 1980, when he

became an adult, he has been arrested more than seven

times and that on every occasion he has been read his

rights. He testified emphatically that “he knows his

rights.” Thus, in a nutshell, it is clear that the appellant,

fully cognizant of his right to speak or remain silent,

chose, after the second Miranda warning, to give a

detailed confession. To find this knowledgeable appel-

lant’s confession must be suppressed due to the failure of

the officers to honor his prior decision to remain silent

would effectively allow him to cleverly work the system

to his advantage. As the Supreme Court noted long ago in

a Sixth Amendment right to counsel case, the determina-

tion of whether there has been an intelligent waiver must

7 Christopher is distinguishable from this case in that it

involved one extended period of questioning in which his

unequivocal assertion of his right to remain silent was ignored.

824 F.2d 840.

App. 50

depend upon the particular facts and circumstances sur-

rounding that case, including the “background, experi-

ence, and conduct of the accused.” Johnson v. Zerbst, 304

U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 146 (1938).

In Oregon v. Elstad, supra, 105 S.Ct. at 1298, the

United States Supreme Court noted that “(a) handful of

courts have, . . . applied our precedents relating to con-

fessions obtained under coercive circumstances to situa-

tions involving wholly voluntary admissions, requiring a

passage of time or break in events before a second, fully

warned statement can be deemed voluntary. Far from

establishing a rigid rule, we direct courts to avoid one;

there is no warrant for presuming coercive effect where

the suspect’s initial inculpatory statement, though techni-

cally in violation of Miranda was voluntary. The relevant

inquiry is whether, in fact, the second statement was also

voluntarily made.” To make that determination, courts

must look to “the surrounding circumstances and the

entire course of police conduct with respect to the suspect

in evaluating the voluntariness of his statements.”

From all of the circumstances, including the appel-

lant’s own testimony, it is clear that the second statement,

given after proper Miranda warnings and a waiver of

rights by the appellant, was entirely voluntary. The judg-

ment suppressing the statement is reversed and this

App. 51

cause is remanded to the trial court for further proceed-

ings. ;

/s/ Jerry Scott

JERRY SCOTT JUDGE

CONCUR:

(Not participatin

MARTHA CRAIG DAUGHTREY, JUDGE

/s/ Adolpho A. Birch, Jr.

ADOLPHO A. BIRCH, JR., JUDGE