Roger Guy Russell, Jr. v. State

IN THE TENTH COURT OF APPEALS No. 10-04-00190-CR Roger Guy Russell, JR., Appellant v. The State of Texas, Appellee From the 361st District Court Brazos County, Texas Trial Court No. 03-01884-CRF-361 Opinion A jury convicted Robert Guy Russell, Jr. of murder under the influence of sudden passion and assessed his punishment at ten years’ imprisonment. Russell contends in a single issue that the trial court erred in admitting a confession he made after stating he needed to call his attorney. We will reverse and remand for a new trial. Factual Background On the night in question, Officer Adam Henderson with the College Station Police Department was patrolling the parking lot of a local bar when he noticed a crowd forming. As he drove toward the group, Henderson saw a man lying on the ground and a van speeding off. A witness from the crowd told Henderson the van’s driver, Russell, had just stabbed someone. Henderson pursued the van a short distance until Russell returned to the scene of the stabbing and exited his vehicle. Henderson, with his weapon drawn, ordered Russell to the ground. The officer then handcuffed Russell and asked a single question regarding the whereabouts of the knife used in the stabbing. Russell indicated the knife was in the crowd now surrounding the victim. Henderson then took Russell to his patrol car and searched him. At this time Russell said, “I need my cell phone to call my lawyer.” Henderson responded, “I’m not going to ask you any questions without your lawyer.” Russell was placed in the back of the patrol car for about an hour during which time he was not questioned by police. Russell was then taken to the College Station Police Department where he was given his Miranda rights for the first time. He waived his rights and gave a statement regarding the stabbing. In a pre-trial hearing, the judge overruled Russell’s motion to suppress his confession holding that, pursuant to the public safety exception to Miranda, there had been no custodial interrogation at the time Russell stated he needed to call his lawyer. Thus, Russell had attempted to invoke a right he did not yet have. At trial, a recording of Russell’s statement was played for the jury. Russell took the stand to rebut that confession. The State relied heavily on this confession in its cross-examination of Russell and used it again in closing arguments of both the guilt-innocence and the punishment phase of trial. Standard of Review In reviewing a trial court’s determination in a suppression hearing, a bifurcated standard of review is required. See Montanez v. State, 195 S.W.3d 101, 108 (Tex. Crim. App. 2006); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The court’s ruling is reviewed for abuse of discretion. Montanez, 195 S.W.3d at 108; Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). Almost total deference is owed to the determination of historical facts. Montanez, 195 S.W.3d at 108; Guzman, 955 S.W.2d at 89. However, we review de novo a trial court’s ruling on mixed questions of law and fact which do not turn on the credibility and demeanor of witnesses. Montanez, 195 S.W.3d at 106; Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). Thus, while affording almost total deference to the findings of fact, we review de novo the conclusions of law to determine if the trial court abused its discretion by admitting Russell’s confession. See Montanez, 195 S.W.3d at 108. The issue on appeal does not concern the admissibility of the knife or Russell’s statement regarding its location. This case does not give rise to an allegation of police coercion. The sole issue is whether Russell’s request to call his attorney was an effective invocation of his Fifth Amendment right to counsel after being asked a single question by police but before being Mirandized for a formal police interrogation.[1] Fifth Amendment Right to Counsel The Fifth Amendment to the United States Constitution provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” For more than 100 years, this privilege has protected defendants against the use of involuntary confessions as evidence in a criminal trial. Bram v. United States, 168 U.S. 532, 542, 18 S. Ct. 183, 187, 42 L. Ed. 568 (1897). This fundamental protection was made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653 (1964). In Miranda v. Arizona, the Supreme Court held that the Fifth Amendment privilege against self-incrimination “is fully applicable during a period of custodial interrogation.” 384 U.S. 436, 460, 86 S. Ct. 1602, 1620, 16 L. Ed. 2d 694 (1966). When seeking to introduce a confession in its case-in-chief, the State must “[demonstrate] the use of procedural safeguards effective to ensure the privilege against self-incrimination.” Id. at 444, 86 S. Ct. at 1612. An accused must, prior to a custodial interrogation, be warned that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. Now forty years old, these Miranda warnings are ingrained in the minds of law enforcement and the general public alike. Miranda, however, has not remained unchanged or unchallenged. See Dickerson v. United States, 530 U.S. 428, 441, 120 S. Ct. 2326, 2334-35, 147 L. Ed. 2d 405 (2000). In response to a federal law attempting to overrule the requirements of Miranda, the Supreme Court reaffirmed that Miranda is constitutionally mandated. Id. at 444, 120 S. Ct. at 2336. While “the Constitution does not require police to administer the particular Miranda warnings,” the Constitution does require “a procedure that is effective in securing Fifth Amendment rights.” Id. at 440 n.6, 120 S. Ct. 2334 n.6. In the same breath in which the Court affirmed Miranda’s constitutional roots, it also affirmed the restrictions and exceptions which had become part of Miranda’s jurisprudence. See id. at 441, 120 S. Ct. at 2334-35. The public safety exception is one exception to the prophylactic rules of Miranda. New York v. Quarles, 467 U.S. 649, 657, 104 S. Ct. 2626, 2632, 81 L. Ed. 2d 550 (1984). In narrow circumstances, the threat to the safety of the officers and the general public outweighs the need for giving the Miranda warnings. Id. This exception was created in a situation where law enforcement needed to secure a weapon used in a crime, which weapon was feared to be exposed to the public. See id. (police securing a gun discarded in a grocery store). While Miranda warnings need not be given, the Quarles Court, in circumstances which parallel those in Russell’s case, concluded this was undoubtedly a custodial interrogation. Quarles, 467 U.S. at 655, 104 S. Ct. at 2631. The trial court in this case erroneously concluded that the application of the public safety exception meant the questioning by police was not a custodial interrogation. Were such a brief, informal questioning by police for the purpose of protecting public safety not a custodial interrogation, then there would have been no need to find an exception to the rules of Miranda.[2] See id. The Supreme Court has never characterized its holding in Quarles as an exception to the Fifth Amendment, but only a narrow exception to the prophylactic rule of Miranda. Quarles, 467 U.S. at 658, 104 S. Ct. at 2632; see also United States v. Patane, 542 U.S. 630, 639, 124 S. Ct. 2620, 2627; 159 L. Ed. 2d 667 (2004); United States v. Brathwaite, 458 F.3d 376, 382 n.8 (5th Cir. 2002); Wicker v. State, 740 S.W.2d 779, 786 (Tex. Crim. App. 1987); State v. Stephenson, 784 S.W.2d 143, 145 (Tex. App.—Ft. Worth 1990, no pet.). In addition, the Supreme Court noted that, unlike the Fourth Amendment which prohibits only unreasonable searches and seizures, the Fifth Amendment carries no similar limitation. As such, this exception was to the application of the “strictures” of Miranda and not to the Fifth Amendment, itself or its application to custodial interrogations. See Quarles, 467 U.S. at 653 n.3, 104 S. Ct. at 2630 n.3. From these cases, it is clear that the public safety exception is merely an exception to the prophylactic requirements that Miranda warnings be given but not an exception to the substantive rights found in the Fifth Amendment. The privilege against self-incrimination in the Fifth Amendment and the constitutionally mandated Miranda rights are implicated by a custodial interrogation, regardless of whether the accused has been made aware of them. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378 (1981). Thus, we conclude that the public safety exception simply allows police to forego the reading of Miranda warnings, but the situation, nonetheless, is a custodial interrogation implicating one’s constitutional rights. Some lower courts have expanded the public safety exception to allow police to continue questioning despite the suspect’s invocation of his right to counsel. United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989); United States v. Mobley, 40 F.3d 688, 692 (4th Cir. 1994); Trice v. United States, 662 A.2d 891, 895 (D.C. 1995); People v. Tritchler, 55 Cal. Rptr. 2d 650, 657 (Cal. Ct. App. 1996). Concern for public safety, argued these Courts, is still present and continues to trump any concern regarding the suspect’s knowledge of his rights. DeSantis, 870 F.2d at 540-41. However, the exception extends only as far as the legitimate concern for safety. Quarles, 467 U.S. at 657-59, 104 S. Ct. at 2632-34. Where, as here, the suspect cooperates and the weapon is found, the need for reliance on this exception has ended. The situation is governed by traditional Miranda rules. See Berkemer v. McCarty, 468 U.S. 420, 429 n.10, 104 S. Ct. 3138, 3145 n.10, 82 L. Ed. 2d 317 (1984). Under Miranda, where an accused is subjected to a custodial interrogation, he may properly invoke his right to have counsel present for that interrogation. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. A suspect’s effective invocation of his right to counsel must be “scrupulously honored.” See Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313 (1975). Thus, while the police had the authority not to Mirandize Russell, his invocation of his constitutional rights could not be ignored because the exigent circumstances had passed. Having established this was a custodial interrogation implicating the Fifth Amendment, we now turn to the question of whether Russell’s statement, “I need my cell phone to call my lawyer” was an effective invocation of his right to counsel. Once a putative defendant has properly invoked his right to have counsel present during interrogation, questioning must cease unless initiated by the accused or unless the questioning is conducted in the presence of counsel. Miranda, 384 U.S. at 474, 86 S. Ct. at 1628; Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1884-85. A subsequent valid waiver of the right to counsel can be established only upon a showing that: 1) the accused initiated the communication with law enforcement, and 2) the accused gave a knowing and intelligent waiver of the right he had previously invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 492-93, 83 L. Ed. 2d 488 (1984); Cross v. State, 144 S.W.3d 521, 527 (Tex. Crim. App. 2004). Triggering the “bright-line constitutional rule” of Edwards requires a clear and unambiguous statement requesting the assistance of counsel. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994); Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995). Whether a statement properly invokes the right to counsel is an objective inquiry asking if the request can reasonably be construed as an expression of a desire of an attorney’s assistance. Davis, 512 U.S. at 459, 114 S. Ct. at 2355; Dinkins, 894 S.W.2d at 351. This review of the alleged invocation of the right to counsel looks to the totality of the circumstances. Dinkins, 894 S.W.2d at 351. Russell’s statement that he needed his cell phone to call his lawyer was a clear and unequivocal invocation of his right to counsel. No magic words are required to invoke that right. Dinkins, 894 S.W.2d at 352. Similar requests couched as questions or prefaced with ambivalent qualifiers have been rejected as ineffective. See Davis, 512 U.S. at 462, 114 S. Ct. at 2357 (“Maybe I should talked to a lawyer.”); Saldana v. State, 59 S.W.3d 703, 710-711 (Tex. App.—Austin 2001, no pet.) (“If I wanted a lawyer, where would a lawyer come from?”); Flores v. State, 30 S.W.3d 29, 34 (Tex. App.—San Antonio 2000, pet. ref’d) (“Will you allow me to speak with my attorney before?”). Such ambivalence, however, was not present here. See Jamail v. State, 787 S.W.2d 372, 375 (Tex. Crim. App. 1990) (noting “Now it’s time for me to call my lawyer,” was effective); In re H.V., 179 S.W.3d 746, 755-56 (Tex. App.—Ft. Worth 2005, no pet.) (“I want to call my mother. I want to ask her for an attorney.” effective for a minor). This conclusion is buttressed by Officer Henderson’s response, “I’m not going to ask you any questions without your lawyer.” Clearly, he understood Russell to be asking for an attorney. Thus, the waiver of rights obtained by police before Russell’s statement is not knowing and intelligent because Russell had previously invoked his right to counsel and did not initiate the subsequent communication with the officers. Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1884-85. Therefore, we hold that the trial court erred in concluding that the police question regarding the knife was not a custodial interrogation. Russell clearly and unequivocally invoked his right to counsel, and in violation of the no-initiation rule of Edwards, the police obtained a waiver of Russell’s rights. The court abused its discretion by overruling Russell’s motion to suppress. Harmful Error We next must determine whether this error harmed Russell. Where, as here, the appellate record in a criminal case reveals constitutional error, we must reverse a judgment unless we determine beyond a reasonable doubt the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). We begin by reviewing the trial record to determine how the State used this confession. The State offered ample evidence of Russell’s guilt independent of his confession. The arresting officer testified to having seen Russell flee the scene. The knife and Russell’s statement regarding its location were properly admitted. Three witnesses testified as to Russell’s having been upset at the victim, and additional witnesses testified to the details of the stabbing. Nevertheless, the State relied upon Russell’s confession extensively, both during its case-in-chief and during closing arguments. Initially, the State played a recording of the confession for the jury during its direct examination of the detective who interrogated Russell. Russell chose to take the stand and attempt to rebut the statements therein.[3] The State then extensively cross-examined Russell with his confession, repeatedly questioning Russell as to factually incorrect statements which he originally gave to police. In closing arguments at the guilt-innocence phase, portions of Russell’s statement were again played for the jury, and the State concentrated on discrepancies between Russell’s confession and his trial testimony. “[A] true word could not come out of his mouth in that statement,” stated the prosecutor. This characterization of Russell as an untrustworthy liar continued in the punishment phase when the State told the jury, “[t]hat is the reason it’s not a probation case. Because you’ve got to take a chance on a guy who will not tell you the truth at all.” The trial court instructed the jury on the affirmative defense of self-defense and the lesser charge of manslaughter. The jury rejected these arguments and found Russell guilty of murder. In the punishment phase, the jury found this was a crime of passion, assessing punishment at ten years’ imprisonment. The jury rejected Russell’s request for community supervision or a lesser term of imprisonment. The decision on harmlessness is not determined solely on the basis of whether there is sufficient evidence, independent of Russell’s inadmissible statement, for a reasonable jury to reach the same conclusion. Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S. Ct. 1792, 1798, 100 L. Ed. 2d 284 (1988). Instead, the question is whether the record shows, beyond a reasonable doubt, that the error complained of did not contribute to the verdict obtained. Id.; McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). In assessing harm, we consider: · the source and the nature of the error; · the extent to which the State emphasized it; · the probable collateral implications of the error; · the weight a juror would probably place upon it, giving consideration to whether the record contains “overwhelming evidence supporting the finding;” and · whether declaring the error harmless would encourage the State to repeat it with impunity. Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. denied); see also Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). The source of this error was the innocent misconduct of police, and the State’s reliance on this unconstitutionally obtained confession in trial. During trial, this confession was repeatedly referenced, and portions of the recorded statement were played for the jury numerous times in questioning police and Russell. The recording was also used in the State’s closing arguments. Russell’s confession to police contained numerous fabrications, and the State used those lies to attack his character for truthfulness and trustworthiness. The implications of the confession were that Russell was an untrustworthy liar who must be convicted and punished in a severe manner. Russell’s defense was not that he did not commit the stabbing, but rather that the stabbing was justified as self-defense and that he lack the requisite mens rea to be guilty of murder. The success of these defenses turned on the jury’s determination of Russell’s credibility, and it was his credibility which the State used the confession to undermine. Despite the substantial evidence of guilt, there was little evidence of intent absent Russell’s confession. Though the record indicates this confession was not obtained in flagrant violation of constitutional rights, holding its admission harmless would encourage police and prosecutors to be less diligent in adhering to the rules of Miranda. While the evidence apart from the custodial statement is sufficient to support the verdict, we cannot find that there is no reasonable likelihood that the State’s use of Russell’s statement did not materially affect the jury’s deliberation. See Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). As the Court of Criminal Appeals recently stated, it is difficult to know that the thoughts of the jury regarding a particular piece of evidence, and although suppression of this evidence might not have altered the jury’s verdict and assessment of punishment, we cannot say so beyond a reasonable doubt. Renteria v. State, No. 74-829, 2006 Tex. Crim. App. LEXIS 1919, at *16-17 (Tex. Crim. App. Oct. 4, 2006). Therefore, we hold that the erroneous admission of Russell’s confession cannot be found beyond a reasonable doubt to have not contributed to the jury’s verdict of guilty of murder and its assessment of punishment. Tex. R. App. P. 44.2(a). “Although we are slow to overturn the verdict of a jury, when fundamental constitutional protections are violated, however innocently, we must uphold the integrity of that law.” McCarthy, 65 S.W.3d at 56. Accordingly, we reverse the judgment of the trial court and remand this cause for a new trial consistent with this opinion. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Affirmed Opinion delivered and filed November 15, 2006 Publish [CRPM] [1] In addition to his Fifth Amendment claim, Russell also contends that the admission of his statement violated the Sixth Amendment, article I, section 10 and section 19 of the Texas Constitution, and articles 1.05, 38.03, 38.22 and 38.23 of the Texas Code of Criminal Procedure. However, because Russell failed to present these contentions to the trial court, he did not preserve them for appellate review. Tex. R. App. P. 33.1. [2] The State argued in at the trial court level that because there was a lapse of “more than a few moments” between the question regarding the knife and Russell’s request for his attorney, the interrogation had ended, and the request was void. The State also placed some reliance on the fact that there is only one question asked. The argument was not raised before this Court, but it is nonetheless unpersuasive because these facts present a continuous encounter with police. Clearly, this was still a part of the custodial interrogation when viewed from the perspective of the suspect. United States v. Webb, 755 F.2d 382, 388 (5th Cir. 1985); see also Bush v. State, 697 S.W.2d 397, 403 (Tex. Crim. App. 1985) (incriminating statement as was the result of custodial interrogation despite more than 15 minutes since the time of the question and since the suspect’s last statement). [3] By taking the stand to rebut the statement offered against him, Russell did not waive his right to now claim harm where, in testifying, he offered testimony to rebut the evidence admitted over his objection. See Leday v. State, 983 S.W.2d 713, 718-19 (Tex. Crim. App. 1998).