Opinion
ID No. 0906002280.
Submitted: July 19, 2010.
Decided: August 25, 2010.
Upon Defendant's Motion to Suppress Evidence. DENIED.
Allison P. Texter, Esquire, and Brian D. Ahern, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorneys for the State.
Peter W. Veith, Esquire, and Gregory M. Johnson, Esquire, Wilmington, Delaware, Attorneys for Defendant.
MEMORANDUM OPINION
I. INTRODUCTION
This motion to suppress evidence arises from a police interrogation of Defendant, Paul Fisher, which took place on June 2, 2009. Defendant was under investigation for a murder that had occurred on May 29, 2009 in New Castle County.
Prior to interrogating Defendant, New Castle County police detectives Michael Zielinski ("Zielinski") and Thomas Abram ("Abram") read Defendant Miranda warnings from a New Castle County Police Miranda form. There is no dispute that Defendant initially acknowledged his rights and voluntarily agreed to talk with the detectives at the start of the interview.
Paul Fisher Interview at 6.
As a result of Defendant's initial wavier of his Miranda rights, Zielinski and Abram began to question Defendant about a robbery that had occurred one day prior to the murder as well as about the murder itself. During the course of questioning, Defendant gave conflicting accounts of what happened on the night of the murder.
At one point during the questioning, Defendant stated that:
I don't got no, no, no, lawyer, no nothing in here you feel me. I'm by myself and I'm, I'm feeling like yall is just making me say shit that's, that's, that maybe I, I shouldn't be saying it. Maybe I should have the right defense in here with me man cause this. Man I, I, I don't want to go to jail over, over no shit I didn't do.
July 12 Appx. to State's Resp. at A1.
After this ambiguous statement regarding Defendant's possible desire for an attorney, Abram continued to question Defendant about the crime itself and about Defendant's possible request for an attorney while Zielinski immediately left the room to confer with a Deputy Attorney General for advice about continuing the interrogation given Defendant's ambiguous comment. When Zielinski returned, he asked Defendant if he still wished to speak, and Defendant told detectives that he wished to continue to talk to them. Approximately two or three minutes later, both Abram and Zielinski left the room. When they returned, Defendant was reread his Miranda rights, but Defendant then told the detectives that he did not wish to continue the interview. Defendant was then transported to a holding cell.
Trans. of May 25, 2010 Suppression H'rg at 20-22; see infra pp. 9-10.
Id. at 22-23; see infra pp. 9-11.
Id.
Id. at 24-25.
Id. at 26-27.
As Defendant was being taken to the holding cell, he asked the detectives what he was being charged with, and the detectives informed him that he was being charged with a number of charges including Murder First Degree. Defendant then informed the detectives that he wished to re-initiate the interview, and he attempted to push open the holding cell door in connection with his stated wish to resume his interview. A non-audio surveillance video of the holding cell played during the suppression hearing showed Defendant attempting to push open the cell door.
Id. at 27-28.
Id. at 27-28.
Upon returning to the interview room, Defendant was reread Miranda warnings, and Defendant acknowledged those warnings before voluntarily agreeing to speak. At this point, Defendant told detectives many details about the murder. His statement implicated codefendants Drakkar Briscoe, Daniel Schofield, and himself.
Id. at 28-29.
Paul Fisher Interview at 129-30.
Id.
The issues presented by this motion to suppress are (1) whether Defendant was coerced into giving a statement in violation of either the United States Constitution or the Delaware Constitution when New Castle County Police detectives continued to question Defendant and informed Defendant of the charges against him after Defendant ambiguously noted that a lawyer was not present and stated that he "didn't have the right defense" and later unambiguously said that he wanted a lawyer; and, (2) whether the length of time Defendant spent at the New Castle County police station was "unreasonable" in that Defendant was not presented to a magistrate within a reasonable amount of time after his arrest.
After reviewing tapes of Defendant's interrogation and the testimony adduced at the hearing on Defendant's motion to suppress, this Court concludes that Defendant's statement to police was given voluntarily and that his waiver of Miranda was given with full awareness of the right being abandoned and the consequences of the decision. Defendant's statement is admissible, but with the exception of the statements beginning with "[t]he walls are closing in man" and ending with "I didn't. Listen, listen man. Listen I didn't. I didn't participate in that man. I didn't[,]" which are suppressed since these questions were not limited to clarification of whether Defendant wanted an attorney. This Court finds the testimony of Zielinski and Abram more credible on the issue of voluntariness than that of Defendant, who also testified at the suppression hearing and contradicted the detectives on key points. This Court also finds significant as a sign of voluntariness the fact that Defendant attempted to push open his cell door in an effort to return to the interview room.
Paul Fisher Interview 123-126.
Additionally, this Court does not find that the length of time that Defendant spent at the New Castle County police station was unreasonable. Defendant was arrested at approximately noon on June 2, 2009. He was twice provided with bottled water and given food. Defendant was only subject to direct interrogation by detectives for approximately five hours. Defendant was then presented to a magistrate at 8:30 a.m. the next day. Considering the circumstances of this case, this Court does not find unreasonable delay.
Accordingly, Defendant's motion to suppress evidence is DENIED.
II. FACTS
On May 29, 2009, a home invasion occurred at 9 Revelle Street in New Castle County. During the home invasion, one of the occupants, Adam Reed, was shot and killed, and another occupant, Steven Rush, was injured. The robbers fled from the house with prescription pain killers and an Xbox game system.
New Castle County police began to investigate the murder, and, as a result of their investigation, Defendant was developed as a suspect. Police found that Defendant was currently on active probation and had an active warrant for failing to appear in court. Defendant was apprehended by police pursuant to the outstanding warrant around noon on June 2, 2009 and was brought to New Castle County Police Headquarters for questioning.
Id.
Trans. of May 25, 2010 Suppression H'rg at 86-88.
Promptly after Defendant's arrest, New Castle County police obtained a warrant to search Defendant's residence located on Spruce Street in Wilmington. The search warrant was executed at approximately 3:53 p.m. on June 2, and police recovered numerous incriminating items including an Xbox that appeared to match the description of the Xbox taken during the home invasion.
Id. at 16.
Id.
Following the execution of the warrant, Defendant was interviewed by New Castle County detectives Zielinski and Abram. Although Defendant had previous "run-ins" with the law, he had apparently never been read his Miranda rights. The interview began at approximately 5:15 p.m. on June 2, 2009, when Zielinski read Defendant his Miranda rights. Defendant acknowledged those rights and agreed to talk with the detectives.
Jul 2 Appx. to Op. Br. at A-27.
Trans. of May 25, 2010 Suppression H'rg at 91-92.
For approximately the next hour, the detectives interrogated Defendant about a robbery that occurred the day before the murder. Defendant was then interrogated about the home invasion and murder. At first, Defendant gave conflicting accounts of his involvement in the home invasion. Defendant began by denying that he was present and told detectives that he had heard that two guys "ran up into" the residence, shot Adam Reed and took his Xbox. Defendant denied owning an Xbox himself, but then told detectives that his girlfriend had given him an Xbox the night before. Later, Defendant told detectives that he had purchased an Xbox for forty dollars on the street.
Id. at 93.
Paul Fisher Interview at 8, 10, 32.
Id. at 38.
Id. at 41-44.
After more questioning, Defendant changed his story and admitted that he had been present during the home invasion. He stated that he had gone to 9 Revelle Street to buy prescription pain killers. Defendant told police that, when he arrived at the residence, two people wearing masks pushed past him into the residence. Defendant stated that one of the assailants had a small revolver. Defendant told the detectives that he saw an assailant strike Adam Reed on the head. Defendant maintained that he fled the scene and did not know either of the assailants.
Id. at 60.
Id.
Id.
Id.
Id. at 60-61.
Id. at 62.
Zielinski then confronted Defendant with a number of inconsistencies in his story. Defendant told Zielinski that he did not know who else was involved, although he suspected it was a friend of Schofield, who went by the alias "Flocco." Defendant stated that Schofield had told him that the gun used in the murder was a .22 revolver. Defendant admitted that he had gone to Schofield's residence on June 1, 2009 to retrieve the Xbox. After additional questioning, Defendant stated that a Ramon Betts might know where the gun used in the murder was located.
Id. at 63.
Id. at 78.
Id. at 80.
Id. at 86-87.
Id. at 93.
The detectives then left to seek to retrieve the gun and managed to recover it as a result of the information given by Defendant. When the detectives returned, Defendant was transported back to the interview room for further questioning. Defendant continued to deny his involvement, but admitted that the other person involved was not "Flocco" but Drakkar Briscoe.
Id. at 119.
After further questioning Defendant stated:
I don't got no, no, no, lawyer, no nothing in here you feel me. I'm by myself and I'm, I'm feeling like yall is just making me say shit that's, that's, that maybe I, I shouldn't be saying it. Maybe I should have the right defense in here with me man cause this. Man I, I, I don't want to go to jail over, over no shit I didn't do.
July 12 Appx. to State's Resp. at A1.
Zielinski then left the room to confer with a Deputy Attorney General for advice about Defendant's ambiguous statement about possibly wanting a lawyer, and Defendant and Abram continued to talk.
Abram asked several questions and made several comments not in the form of questions:
Abram: The walls are closing in man.
Defendant: Man look, honest story is the same story you feel me. Niggas out there you know what I mean wanted some Zanies you feel me. I guess. I guess you know what I mean ah, Danny had a problem with Adam or something you feel me, a little problem with as Steve O, or one of them in the house you feel me. So the, the, the, the plan was just to go over there you feel me, none of this mask shit, none of that you feel me, just a hoodie you feel me, a, just to go over there and, and you know what I mean just beat him up right fast, just a little you know what I mean, just a little rough him up man. It wasn't. It wasn't. Just a scare man you feel me.
Abram: Where did you meet up? Where'd you guys meet to discuss that, what you were going to do?
Defendant: Man we was.
Abram: Where did. Where did you meet up?
Defendant: Man we was out by Danny house and we was just talking.
Abram: Ok. So it's you, Danny, and who?
Defendant: Me, Danny, and, and, and, and, and, and Karr yo, Danny and Karr, Danny and Karr you feel me.
Abram: Drakkar?
Defendant: Yeah. It wasn't. It wasn't. It wasn't suppose to go how it went you feel me. Like the, the, the, the, the, the plan was just to scare him.
Abram: List, listen to me for a second before, fore you go any further. Listen to me alright. When you started this conversation.
Defendant: See man that's why I knew it (inaudible)
[Detective]: I'm not stopping you. I'm not stopping you caus I don't believe you. Listen to me. Listen to me. When we started this conversation right you brought up to mention that you wanted a lawyer, you wanted an attorney ok?
Defendant: Mmm
Detective: Is that. What, what's the deal? Is that what you want, or do you want, or do you want. What, what do you want to do? This is your opportunity. You been given your Miranda rights. You know what it reads on the paper.
Defendant: I just want to be. I just want to be properly rep, represented man. I, I don't want to be putting myself in no deeper shit then I'm already in you know. I really don't want to get locked up for this shit man caus I really had no part of the shit. That's what I'm trying to tell you man, but I don't want to say nothing that, that, that.
Detective: So my question is do you want to continue to talk to us now or not? It's a yes or no question.
Defendant: I'm saying what's gone happen if I, if I don't talk to yall? What's gone happen?
Detective: We can't force you to talk. We're asking you do you want to continue to talk to us or not to talk to us?
Defendant: I'm saying what's gone happen? What am I.
Detective: I can't tell you what's going to happen if you do or you don't. I'm asking you.
Defendant: (Inaudible) sitting here for another twelve hours.
Detective: (Inaudible) I ask you whether or not you do (inaudible) what's going to happen if you do, what's going to happen if you don't. You brought up to me that you, that you, you, two specific words, that you want an attorney and then you brought up the word lawyer. You brought up the word attorney and you brought up.
Defendant: What they heard me on camera say that?
Detective: So my question is to you do you want to continue to sit here and talk to us about the situation, or no? You've been given your Miranda rights. You understand what they, what they mean.
Defendant: I'm saying. Man I'll talk man, but I just, I just don't want to put myself in no, in no, in no, in no, in no crazy situation you know caus I don't want to put myself in no crazy situation where I'm, where I'm getting locked up for some shit I ain't do man.
Detective: My man you understand you were there right?
Defendant: Yeah
Detective: And the guy, the guy was murdered right?
Defendant: Yeah man.
Detective: Alright so.
Defendant: I ain't have no parts of that tho. That's, that's what I'm saying. Like I ain't have no parts. I didn't have no intentions, none of that man, none of that was suppose to happen. Like none of that. I didn't. I didn't help you know what I mean do that. I didn't.
Detective: My thing to is you know you don't think.
Defendant: (Inaudible) I froze man. I like man I ain't participate in that at all man like.
Detective: So do you want to continue to talk to us and we'll talk, talk about this?
Defendant: I hope yall just don't dick me man for real.
Detective: We're gonna do. We're gonna do what believe is, is the right thing to do. I mean. I mean obviously you know we been working on this thing ever since, ever since.
Defendant: I just don't want to get dicked man, for real caus I ain't, I ain't. I just don't want to get dicked yo.
Detective: What do you mean by dicked?
Defendant: Like I don't, I don't, I don't, I don't, I don't want to tell you something here you feel me and I, and I still got to do years over this shit man. I don't want to do no years over nothing man.
Detective: My man you realize you, you were there when somebody was murdered right?
Defendant: I didn't. Listen, listen man. Listen I didn't. I didn't participate in that man. I didn't.
Paul Fisher Interview at 123-26.
At some point during this discussion, Zielinski returned to the interview room. The discussion continued before Abram and Zielinski left the room. When they returned, Defendant was reread Miranda, and, at that time, Defendant decided not to continue the interview.
[Detective]: Ok put your initials there. Do you understand each of the rights that I explained to you? Put your initials there also. Having these rights in mind do you still. Do you wish to talk to us?
Defendant: Nah I want a lawyer man.
Id.
Id. at 125-28.
Id. at 126.
Defendant was then transported to a nearby holding cell. At the suppression hearing, Abram testified:
[Mr. Ahern]: Now, when he invokes his Miranda rights and just decides not to speak with you at that point, what happens next?
[Abram]: Myself, Detective Zielinski, and Paul Fisher all get up, leave the room, and he is escorted back to the cell block and is placed into a cell.
Q: Okay. And is that the end of it? What happens after that?
A; While he's being placed in the cell, he turns and asks as to what are his charges.
I respond to him, "Nobody has told you what you're being charged?"
He said "No."
I told him that he was facing approximately 16 charges. And at that point, I start to tell him what the charges are, and he's — and after telling him what the charges are, he says — he states, "I'll tell you anything you want to know. I'll tell you anything you want to know. I wanna talk."
At that point, I'm closing the cell door, he's holding the — he's preventing me from closing the cell door by putting his hand up against the cell door. He continues, "I'll tell you anything you want to know. I'll tell you anything you want to know." I eventually close the cell door.
Myself and Detective Zielinski eventually again consult with the Deputy Attorney General that was there, and relayed the fact that he stated that he will tell us anything we want to know, and at that point he was taken back into the interview room.
Q: And do you recall approximately how long it was from the time that he left the interview room when he would invoke Miranda until he's brought back in after speaking to you in the hallway, as you just described?
A: There's no time stamp on the actual DVDs of the interview. Just timing, it was approximately six minutes.
Q: So, the three of you go back into the interview room; is that right?
A: Yes.
Q: And what do you do when you get back into the interview room?
A: I believe since we went back into the interview room, I stated to him that, you know, "You stated that you want to talk to us again; correct?" And he said "Yes."
I said, "Is anybody forcing you to talk to us, because you had told us earlier you didn't want to speak to us anymore."
He said, "I want to talk to you."
Trans. of May 25, 2010 Suppression H'rg at 26-28.
Zielinski's testimony corroborated Abram's testimony:
[Mr. Ahern]: Okay. And do you recall, was there any conversation with him while you were walking back?
[Zielinski]: While we're walking him back there, we're standing — we're basically both standing at the door to the entrance to the cell he was in, at which point he asked what he was being charged with, at which point Detective Abram began to tell him the criminal offenses that he would be facing, and I think there was a total of 16 or 17 charges. Upon hearing that, Mr. Fisher stated that he now wanted to talk. He was pretty adamant that he wanted to speak again about the situation, based upon the fact of when he found out what the charges were.
Q: Okay. Now, this cell and this hallway that you're referring to, is this under surveillance?
A: Yes.
Q: Okay. Is that surveillance recorded?
A: Yes.
Q: And have you reviewed that surveillance —
A: Yes.
Q: — Tape?
A: Yes.
Q: The events that you're describing today, are they reflected on that video?
A: Yes.
Q: So, what do you do after he indicates that he wants to continue to talk at the cell — at the holding cell, excuse me, just to clarify?
A: Um, at that point, we said — you know, at that point, I think we decided, okay, you know, let's see where we stand here, and we began to close the cell door, at which time he — Mr. Fisher puts him hand on it, pushing the door back open, and again repeating, "No, I want to talk to you. No, I want to talk to you." We are trying to push the door closed. He's trying to push it open. And we said, "Okay. Give us a couple minutes." We closed the door.
Id. at 101-103.
Defendant's testimony at the hearing contradicted that of Abram and Zielinski:
[Mr. Veith]: Okay. Do either one of those officers say anything to you while you're being walked back to the holding cell after you were removed from the interview room, if you recall?
[Defendant]: Well, when I stepped out, when we was walking to the holding cell, I was kind of talking to myself, mumbling to myself. And I said, you know, I don't want to be charged with no murder. And that's when Zielinski said, um, well, you know now is the time. Now is the time to tell us — tell the whole story of what really happened. We were 100-percent sure you were there. And we finally got to the holding cell, and that's when I guess I heard — I thought I heard Abram say that I had 17 counts of murder.
Q: Did you ask him what your charges were?
A: No. They just put me in the cell and he just start saying the charges.
Q: And did they close the cell door on you?
A: Yeah.
Q: Did you fight back to try to prevent them from shutting the door?
A: Yeah, kind of, pushed the first time and then . . .
Q: And why did you do that?
A: Because I was trying to figure out why I being charged with 17 counts of murder and, um, I kept telling him I was ready to talk after that, and he just ended up closing the door on me.
Q: But your testimony is before they put you in the cell, that Detective Zielinski said words to the effect, this is the time to help yourself; is that accurate, sir?
A: Yeah. He said, this is the time to tell what really happened, the story.
Id. at 168-69.
Defendant was then transported back to the interview room and reread his Miranda rights. Defendant told the detectives that he was not being forced to talk and that he was comfortable talking. Defendant then told the detectives about how Briscoe, Schofield, and himself were involved in the robbery.
Id. at 28.
Id.
In total, Defendant spent approximately twenty hours at New Castle County Police Headquarters. He was provided with water and given a meal. The actual length of time Defendant spent being questioned by police was approximately five hours. After Defendant confessed to participation in the murder, he was taken to a magistrate at approximately 8:30 a.m. on June 3.
III. THE PARTIES' CONTENTIONS
Defendant has filed a motion to suppress evidence arguing that (1) he was coerced into giving a statement in violation of the United States Constitution and the Delaware Constitution because New Castle County detectives continued to substantively question him after he ambiguously, and then unambiguously, asserted his right to counsel; and, (2) the length of time that he spent at the New Castle County police station was "unreasonable" because he was not presented to a magistrate within a reasonable amount of time after arrest.
First, Defendant argues that his confession was coerced in violation of Miranda. In support of this argument, Defendant contends that "all statements made by [Defendant] after his initial invocation of his rights to remain silent and to have counsel present should be excluded from use at trial." Defendant argues that the police continued to question him after he invoked his right to counsel and, among other things, told Defendant that "[t]he walls are closing in man[.]" Defendant contends that he never asked the detectives about his charges and that the detectives continued to talk to him on the way to the holding cell. Defendant asserts that the totality of the circumstances, including his youth and inexperience with custodial interrogation, demonstrates that Defendant "did not make a knowing, intelligent and voluntary waiver of his right to have counsel present during the questioning."
Jan. 28, 2010 Op. Br. at 5.
Jul. 2, 2010 Op. Br. at 4.
Id. at 5.
Id. at 7.
Second, Defendant argues that the delay in presenting him to a magistrate after arrest was "unreasonable." Defendant contends that "[i]t is long settled law in Delaware that a detention of more than 24 hours is unreasonable and will lead to the exclusion of evidence obtained during such illegal detention." Defendant asserts that the police deprived him of food and water for the first twelve hours of his time at New Castle County Police Headquarters. Additionally, Defendant argues that he "was held and interrogated for over 21 hours before being presented to a magistrate." Defendant contends that the detention was unreasonable and all evidence should be excluded.
Jan. 28, 2010 Op. Br. at 6.
Id. at 7.
Jul. 2, 2010 Op. Br. at 11.
In response, the State argues that Defendant's confession was obtained without a violation of Defendant's Miranda rights and that Defendant was presented to a magistrate within a reasonable time. The State asserts that the detectives acted properly when Defendant expressed a desire to have "the right defense in here." The State argues that the detectives then appropriately inquired into whether Defendant desired an attorney and, only after Defendant refused to speak, was Defendant transported to the holding cell.
Jul. 12, 2010 Ans. Br. at 3.
Id.
The State also contends that Defendant reinitiated the conversation with the detectives by asking about his charges. The State further argues that Defendant's statements thereafter were voluntary as evidenced by Defendant's trying to push open his cell door in an effort to return to the interview room. The State asserts that Defendant reinitiated conversation with the detectives voluntarily and with full knowledge and understanding of the rights that he was waiving.
Id. at 4.
Id.
Finally, the State argues that Defendant was presented to a magistrate within a reasonable amount of time after he was detained. The State contends that "[t]he trial Judge must determine unreasonable delay on a case by case basis and under the totality of the circumstances." The State argues that, even though Defendant was arrested around noon, the initial interview did not take place until approximately 5:15 p.m. because police had to execute a search warrant at Defendant's residence. The State also contends that there was a pause in the interview because police had to obtain the gun used in the murder after Defendant revealed the gun's location. The State argues that the total amount of time is not unreasonable because Defendant "was given the opportunity to rest, was given food and refreshment, and was not forced to speak with the police[.]"
Id. at 6.
Id.
Id.
Id. at 8-9.
IV. DISCUSSION
The issues presented by this motion to suppress are (1) whether Defendant was coerced into giving a statement in violation of either the United States Constitution or the Delaware Constitution when New Castle County Police detectives continued to question Defendant and informed Defendant of the charges against him after Defendant ambiguously noted that a lawyer was not present and stated that he "didn't have the right defense" and later unambiguously said that he wanted a lawyer; and, (2) whether the length of time Defendant spent at the New Castle County police station was "unreasonable" in that Defendant was not presented to a magistrate within a reasonable amount of time after his arrest.
A. New Castle County Police Detectives Did Not Violate Miranda Because Defendant Voluntarily Agreed to Talk With Police After Asking the Detectives to Identify his Charges
" Miranda warnings are required when police interrogate a suspect in a custodial setting." An accused may waive the rights afforded by Miranda provided the waiver is made "knowingly, intelligently, and voluntarily." The State bears a "heavy burden of demonstrating the voluntary relinquishment by a defendant of his [rights]."
Tolson v. State, 900 A.2d 639, 641 (Del. 2006).
DeJesus v. State, 655 A.2d 1180, 1192 (Del. 1995).
Wainwright v. State, 504 A.2d 1096, 1101 (Del. 1986).
In Delaware, when a defendant asserts his right to counsel, the police may not continue to question the defendant without counsel present, unless the State can demonstrate that the defendant initiated the discussion and knowingly and intelligently waived the right to counsel. With respect to ambiguous assertions of a desire for counsel, Delaware applies a higher standard than federal courts and numerous other states because even an ambiguous assertion of the right to counsel during a custodial interrogation is afforded some protection. In Delaware, where an ambiguous assertion of the right to counsel is made, the police must cease all questions except those questions necessary to discern whether the defendant actually wants an attorney. "If []the police make additional inquiries concerning a suspect's intentions, the clarifying questions may not coerce or intimidate the suspect or otherwise discourage his effort to secure counsel, if that is his intention."
Compare Crawford v. State, 580 A.2d 571, 574 (Del. 1990) ("We thus endorse the clarification approach which may include, as occurred here, the repeating of Miranda warnings as a means of emphasizing the defendant's constitutional right to counsel."), with Davis v. U.S., 512 U.S. 452 (1994) (holding that "[u]nless the suspect actually requests an attorney, questioning may continue."), and Berghuis v. Tompkins, 130 S. Ct. 2250, 2260 (2010) ("A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that `avoid[s] difficulties of proof and . . . provide[s] guidance to officers' on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and face the consequence of suppression `if they guess wrong.'").
Crawford, 580 A.2d at 577.
Id.
Id.
To determine whether a defendant has validly waived his right to counsel in both the Crawford and Davis contexts, this Court must examine two elements:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal [sic] both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda warnings have been waived.
DeJesus v. State, 655 A.2d 1180, 1192 (Del. 1995).
In the present case, this Court determines that the "totality of the circumstances surrounding the interrogation" establish that Defendant voluntarily agreed to waive Miranda rights and talk to police. Although Defendant is correct in arguing that this Court should assess Defendant's youth and inexperience with custodial interrogation to determine whether his "will was overborne," this Court does not find that these factors militate in favor of finding coercion because Defendant did have some prior experience with police and was read his Miranda rights. Defendant acknowledged that he understood those rights. Defendant was read the Miranda warnings multiple times and never indicated that he did not understand the rights covered by Miranda.
Fullman v. State, 389 A.2d 1292 (Del. 1978), rev'd on other grounds, Davis v. State, 400 A.2d 292 (Del. 1979).
Additionally, the facts demonstrate that police honored Defendant's request to terminate the interview. Prior to terminating questioning, Defendant told police that he did not want his statement to be used against him. Despite this assertion, Defendant continued to talk, and the detectives were constitutionally permitted to continue questioning because Defendant did not express any desire to have an attorney present or to remain silent at that time.
Paul Fisher Interview at 125-26.
Defendant, later in the interview, then said he "don't got no, no, no, lawyer" and expressed his desire "to have the right defense." Defendant contends that this statement was an ambiguous request for counsel, and the detectives were, at that time, required to confine their questions to determining whether Defendant actually desired a lawyer. This Court, for the purposes of this motion, will assume that the forgoing statement constituted an ambiguous request for counsel. Defendant asserts that the detectives did not just attempt to clarify his intentions, but immediately continued to ask substantive questions.
Abram: The walls are closing in man.
Defendant: Man look, honest story is the same story you feel me. Niggas out there you know what I mean wanted some Zanies you feel me. I guess. I guess you know what I mean ah, Danny had a problem with Adam or something you feel me, a little problem with as Steve O, or one of them in the house you feel me. So the, the, the, the plan was just to go over there you feel me, none of this mask shit, none of that you feel me, just a hoodie you feel me, a, just to go over there and, and you know what I mean just beat him up right fast, just a little you know what I mean, just a little rough him up man. It wasn't. It wasn't. Just a scare man you feel me.
Abram: Where did you meet up? Where'd you guys meet to discuss that, what you were going to do?
Defendant: Man we was.
Abram: Where did. Where did you meet up?
Defendant: Man we was out by Danny house and we was just talking.
Abram: Ok. So it's you, Danny, and who?
Defendant: Me, Danny, and, and, and, and, and, and Karr yo, Danny and Karr, Danny and Karr you feel me.
Abram: Drakkar?
Defendant: Yeah. It wasn't. It wasn't. It wasn't suppose to go how it went you feel me. Like the, the, the, the, the, the plan was just to scare him.
Abram: List, listen to me for a second before, fore you go any further. Listen to me alright. When you started this conversation.
Defendant: See man that's why I knew it (inaudible)
[Detective]: I'm not stopping you. I'm not stopping you caus I don't believe you. Listen to me. Listen to me. When we started this conversation right you brought up to mention that you wanted a lawyer, you wanted an attorney ok?
Defendant: Mmm
Detective: Is that. What, what's the deal? Is that what you want, or do you want, or do you want. What, what do you want to do? This is your opportunity. You been given your Miranda rights. You know what it reads on the paper.
Defendant: I just want to be. I just want to be properly rep, represented man. I, I don't want to be putting myself in no deeper shit then I'm already in you know. I really don't want to get locked up for this shit man caus I really had no part of the shit. That's what I'm trying to tell you man, but I don't want to say nothing that, that, that.
Detective: So my question is do you want to continue to talk to us now or not? It's a yes or no question.
Defendant: I'm saying what's gone happen if I, if I don't talk to yall? What's gone happen?
Detective: We can't force you to talk. We're asking you do you want to continue to talk to us or not to talk to us?
Defendant: I'm saying what's gone happen? What am I.
Detective: I can't tell you what's going to happen if you do or you don't. I'm asking you.
Defendant: (Inaudible) sitting here for another twelve hours.
Detective: (Inaudible) I ask you whether or not you do (inaudible) what's going to happen if you do, what's going to happen if you don't. You brought up to me that you, that you, you, two specific words, that you want an attorney and then you brought up the word lawyer. You brought up the word attorney and you brought up.
Defendant: What they heard me on camera say that?
Detective: So my question is to you do you want to continue to sit here and talk to us about the situation, or no? You've been given your Miranda rights. You understand what they, what they mean.
Defendant: I'm saying. Man I'll talk man, but I just, I just don't want to put myself in no, in no, in no, in no, in no crazy situation you know caus I don't want to put myself in no crazy situation where I'm, where I'm getting locked up for some shit I ain't do man.
Detective: My man you understand you were there right?
Defendant: Yeah
Detective: And the guy, the guy was murdered right?
Defendant: Yeah man.
Detective: Alright so.
Defendant: I ain't have no parts of that tho. That's, that's what I'm saying. Like I ain't have no parts. I didn't have no intentions, none of that man, none of that was suppose to happen. Like none of that. I didn't. I didn't help you know what I mean do that. I didn't.
Detective: My thing to is you know you don't think.
Defendant: (Inaudible) I froze man. I like man I ain't participate in that at all man like.
Detective: So do you want to continue to talk to us and we'll talk, talk about this?
Defendant: I hope yall just don't dick me man for real.
Detective: We're gonna do. We're gonna do what believe is, is the right thing to do. I mean. I mean obviously you know we been working on this thing ever since, ever since.
Defendant: I just don't want to get dicked man, for real caus I ain't, I ain't. I just don't want to get dicked yo.
Detective: What do you mean by dicked?
Defendant: Like I don't, I don't, I don't, I don't, I don't want to tell you something here you feel me and I, and I still got to do years over this shit man. I don't want to do no years over nothing man.
Detective: My man you realize you, you were there when somebody was murdered right?
Defendant: I didn't. Listen, listen man. Listen I didn't. I didn't participate in that man. I didn't.
Paul Fisher Interview at 123-26.
Both Abram and Zielinski thought that (as Abram testified) Defendant was "talking to himself," but this Court concludes that Defendant was responding to the detective's questions for Crawford purposes.
Trans. of May 25, 2010 Suppression H'rg at 58.
Although it appears that the questions asked by the detectives after Defendant expressed a desire to "have the right defense" until Defendant reinitiated the interview were outside the scope of clarification, this Court holds that Defendant subsequently voluntarily reinitiated the interview and will not suppress Defendant's statements other than Abram's questions and Defendant's responses. After Defendant requested to terminate the interview, the police ceased questioning. Although Defendant asserted that the detectives continued to talk with him as he was transported to the holding cell, both detectives testified at the hearing that they did not say anything to Defendant until Defendant reinitiated conversation by asking them about his charges.
The statements the Court suppresses begin with "[t]he walls are closing in man" and end with "I didn't. Listen, listen man. Listen I didn't. I didn't participate in that man. I didn't." See supra pp. 21-23.
Wayne R. LaFave, Criminal Procedure § 6.9(f) (2007) (stating that for an effective waiver after the right to counsel has been invoked, "[i]t first must be asked whether defendant `initiated' further conversation. This means . . . that `the impetus must come from the accused, not from the officers.'") (citations omitted).
This Court finds the testimony of the two detectives more credible than the testimony of Defendant. The officers' testimony and video surveillance (even though there was no audio) supports the detectives' testimony that Defendant voluntarily reinitiated the interview. Although Defendant contends that "the taped statement itself indicates that Abram told [Defendant] what his charges were[,]" the taped statement does not indicate who started the conversation at the holding cell. This Court accepts the testimony of the detectives that Defendant asked about his charges and then sought to continue the interview after being informed about his charges. This Court finds significant, as a sign of voluntariness, the videotape showing Defendant trying to push open the cell door in an effort to return to the interview room. Responding to Defendant's question about his charges was not interrogation, and Defendant voluntarily reinitiated the interview after being informed of his charges. The detectives did not violate Miranda in obtaining Defendant's confession because the evidence established that Defendant reinitiated conversation with detectives after asserting his right to counsel.
July 1, 2010 Appx. to State's Resp. at A-6. [Abram]: "I asked. I told you what you were being charged with correct?"
U.S. v. Cleveland, 106 F.3d 1056, 1063-64 (1st. Cir. 1997) (holding that "[the defendant] had initiated the conversation with the agents that led to his confession by knocking on the door of his cell. [The defendant] then told [an agent] that he wished to speak with him about the events leading up to his arrest and signed a written waiver of his rights."), aff'd sub nom., Muscarello v. U.S., 524 U.S. 125 (1998).
Finally, this Court finds that Defendant's argument that reinitiating the interview was involuntary because of his fatigue, hunger, thirst, and inexperience with custodial interrogation has no merit. After reinitiating the interview, Defendant talked with the detectives for a significant period of time. As discussed previously, this Court holds that Defendant's will was not "overborne" simply because of fatigue, inexperience, hunger, thirst, or youth.
B. The Amount of Time that Defendant Spent at New Castle County Police Headquarters was not Unreasonable in Violation of Either 11 Del. C. § 1909 or Superior Court Criminal Rule 5(a)
11 Del. C. § 1909(a) provides that:
If not otherwise released, every person arrested shall be brought before a magistrate without unreasonable delay, and in any event the person shall, subject to the limitations contained in subsections (b) and (c) below, be so brought within 24 hours of arrest, unless the court, for good cause shown, orders that person be held for a further period not to exceed 48 hours.
Superior Court Rule 5(a) is similar and provides:
In general. — An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unreasonable delay before the nearest available committing magistrate of the county in which the offense is alleged to have been committed or such other committing magistrate as provided by the warrant or by statute, court rule or administrative order.
When a delay is less than twenty-four hours, the Court must evaluate the circumstances on a case-by-case basis to determine whether the delay was "unreasonable." Although there are "no clear-cut standards of reasonableness [which] may be prescribed[,]" this Court must examine "the number of hours of detention prior to appearance before a Justice of the Peace . . . together with all the other circumstances in the case[.]" "[T]he significant hours of detention are those occurring before the confession and not those thereafter." "[A] delay in the defendant's arraignment will not affect the admissibility of the confession given by the defendant after he is arrested or taken into custody where such delay is shown to be legal or reasonable and necessary under the circumstances." This Court has previously approved of a 21 hour delay prior to the beginning of a statement because the time the defendant spent sleeping was excluded from the time of calculation.
Webster v. State, 213 A.2d 298, 300 (Del. 1965).
Id. at 301.
Id.
Id. at 302.
Admissibility of confession or other statement made by defendant as affected by delay in arraignment — modern state cases, 28 A.L.R. 4th 1121 (West 2010); see also Wright v. State, 633 A.2d 329 (Del. 1993); Poli v. State, 418 A.2d 985 (Del. 1980); Fullman v. State, 389 A.2d 1292 (Del. 1978) rev'd on other grounds, Davis v. State, 400 A.2d 292 (Del. 1979)).
Fullman, 389 A.2d at 1298.
Here, Defendant was arrested at approximately noon on June 2, 2009. He arrived at the New Castle County Police Headquarters at about 12:50 p.m. that same day. Following Defendant's arrest, the police executed a search warrant at Defendant's residence around 3:52 p.m. The initial interview with detectives began around 5:15 p.m.
The initial interview lasted for approximately 3-4 hours, and, at the conclusion of the interview, Defendant was placed in a holding cell. At approximately 10:00 p.m., Abram asked Defendant if Defendant knew where the murder weapon was located, and Defendant provided information that led police to apply for a search warrant.
Around midnight, Defendant was provided with food and a bottle of water. At 2:00 a.m., after the murder weapon was located, the detectives re-interviewed Defendant. After a series of questions, Defendant expressed his desire for counsel and was transported back to the holding cell. Shortly thereafter, Defendant reinitiated the interview and proceeded to give detectives a confession.
In total, Defendant was interviewed for approximately 5-6 hours. When Defendant asked the detectives to stop the interview, the interview was stopped. There is nothing to indicate that the interview was unreasonably long. The interview was long because Defendant provided a lot of information. The detectives needed time to challenge Defendant's conflicting stories and to execute the search warrant. Any delay is "reasonable and necessary" in light of the totality of the circumstances.
Finally, any implication by Defendant that his statement was involuntary or coerced is not supported by the evidence. Although the interview was at times heated, the detectives maintained a professional demeanor and attempted to keep the interview conversational in nature. Additionally, Defendant was provided food and water and placed in a cell with toilet facilities. As discussed above, Defendant initiated the final portion of the interview. There is nothing to indicate that Defendant was coerced into giving a statement.
The delay in presenting Defendant to a magistrate was not unreasonable as required by 11 Del. C. § 1909 or Superior Court Criminal Rule 5. Defendant was given the opportunity to rest, was provided food, and was not forced to speak to the detectives. Any delay in obtaining Defendant's statement was reasonable in light of the totality of the circumstances.
V. CONCLUSION
IT IS SO ORDERED.
DENIED.