davon s. tooley APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
-- April 06, 2012
BRIEF FOR APPELLANT: Elizabeth B. McMahon Assistant Public Defender Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
The sole issue before us is whether the circuit court erred in denying Appellant Davon Tooley's motion to suppress his oral confession obtained by police after Tooley invoked his right to counsel. Upon careful review of the record we find that, while Tooley did invoke his right to counsel, he voluntarily, knowingly, and intelligently waived that right when he subsequently initiated dialogue with the authorities by asking to speak to the interviewing detectives. Accordingly, we affirm the circuit court's denial of Tooley's motion to suppress.
Facts and Procedure
On January 4, 2006, Tooley was arrested and transported to police headquarters in Louisville, Kentucky, for questioning concerning the death of Jarrell Vitt. According to evidence presented at the suppression hearing, Detective Mike Halbleib informed Tooley, prior to any interrogation, of his rights pursuant to Miranda v. Arizona,Double including his right to the assistance of counsel. Tooley signed a waiver-of-rights form, and initialed each individual provision.
Beginning at 11:11 p.m., and until 1:29 a.m., Detective Halbleib, along with Detective Mickey Cohn, attempted to build a rapport with Tooley by discussing his background, family, and criminal history. When the detectives began to question Tooley specifically about Vitt's murder, Tooley asked, “Do I get to call my attorney?” Detective Halbleib reminded Tooley that he had previously read him his rights. Tooley quickly confirmed multiple times that he wanted to speak to his attorney, asking, “So, I have the right to call my attorney?” and, “Can I call my attorney?” and stating “I need to call my attorney.” The detectives terminated their interrogation, and left the interrogation room.
Shortly thereafter, Detective Halbleib provided Tooley with a phone book so that Tooley could locate his attorney's telephone number. Tooley looked through the phone book for approximately fifteen minutes. While Tooley was still examining the phone book, Detective Cohn re-entered the interrogation room and began questioning Tooley about the handgun found in Tooley's possession at the time of his arrest. Detective Cohn also informed Tooley that the detectives had an “open and shut case” against him. In response, Tooley affirmatively stated twice, “I want to speak with my lawyer.” Detective Cohn continued to question Tooley, asking him to give the detectives “his side of the story.” Twenty-five minutes later, at the request of an unidentified law enforcement officer, Detective Cohn ceased his interrogation.
Detective Halbleib testified that Tooley's interview had been video recorded, with the first interview starting at approximately 11:11 p.m. and ending at 1:29 a.m. The second interview started forty-four minutes later at approximately 2:13 a.m. In the interval between the interviews, Detective Halbleib testified that he informed Tooley he was under arrest for the murder of Vitt, and that he was being taken to jail. Shortly thereafter, Tooley asked the detectives to return to the interrogation room, declaring he wanted to tell them what happened. Detective Halbleib informed Tooley that he could no longer talk to him because he had requested an attorney. Tooley stated that he no longer wanted an attorney, and he wanted to talk. At 2:13 a.m., Detective Halbleib restarted the video recording, signifying the beginning of Tooley's second interview. The pertinent portion of Tooley's second interview is as follows:
Halbleib: Davon, uh, did you just ask us to come back in so you could give us a taped statement?
Tooley (crying): Yes.
Halbleib: Davon, do you realize – we are gettin' ready to take you to jail. Is that correct?
Halbleib: And you're aware you're still goin' to jail. Is that correct?
Halbleib: Okay. We talked to you earlier. Is that correct?
Halbleib: And earlier did you want an attorney?
Halbleib: And did we give you a phone book to find an attorney?
Halbleib: Were you able to find ‘im?
Halbleib: Okay. Uh, we were gettin' ready to take you to jail and you asked us to come back in ‘cause you wanted to give a statement. Is that correct?
Tooley: Say yeah.
Halbleib: We were gettin' ready to take you to jail and you asked us to come back in here ‘cause you wanted to tell us what really happened. Is that correct?
Halbleib: Okay. Uh, do you wish to give us a statement without your attorney present?
Halbleib: Did you say yes?
Halbleib: Okay. Have we forced you, in anyway, have we promised you anything in order to get you to make this statement? Hey Davon –
Halbleib: We're on tape and we're askin' you did we force you or promise you anything in order to get you to make this statement?
Tooley: That's all I wanted to know – what you told me – I just wanted to ask if I was goin' to jail tonight, I pro'bly should o' stayed (inaudible).
Halbleib: and I told you right now you're goin' to jail.
Halbleib: You know that, correct?
Halbleib: Did I threaten you at all?
Halbleib: Did any detective in here threaten you at all?
Halbleib: Have we treated you fairly?
Halbleib: Did we promise you anything?
Halbleib: Earlier, I gave you your rights. I'm gonna give you those rights again. Okay? I'm gonna read you your rights, okay, and I want to make sure you understand. You have the right to remain silent. Do you understand that right?
Halbleib: Do you wanna waive that right? Davon –
Tooley: – uh-uh.
Halbleib: Do you want to waive that right?
Tooley: I can't.
Halbleib: Do what?
Tooley: I can't.
Halbleib: You can't waive that right?
Halbleib: Do you not wanna give this statement?
Halbleib: So you do wanna waive that right?
Tooley: Does waive mean no one said that right.
Halbleib: You can waive that right and talk to us. You have the right to remain silent –
Tooley: – I don't even know –
Halbleib: You can waive that right and speak to us right now without your attorney present. Is that what you wanna do?
Halbleib: Okay. Anything you say can and will be used – used against you in a court of law. Did you understand that?
Halbleib: Do you wanna waive that right?
Halbleib: Okay. You have the right to talk to a lawyer prior to any questioning or the making of any statements and to have them present with you while you are being questioned. Do you understand that?
Halbleib: Do you wanna waive that right?
Halbleib: If you cannot afford to hire a lawyer, one will be appointed by the court to represent you before any questioning, if you so desire. Do you understand that right?
Halbleib: Do you wanna waive that right?
Halbleib: Then it says, you may stop the questioning or making of any statement at any time by refusing to answer further or by requesting to consult with an attorney prior to continuing with the questioning or making of statements. Do you understand that right?
Halbleib: Do you wanna waive that right?
After Detective Halbleib finished reviewing Tooley's Miranda rights, Tooley confessed to shooting and killing Vitt. On February 20, 2006, a Jefferson County Grand Jury returned an indictment charging Tooley with Vitt's murder. Double Prior to trial, Tooley filed a motion to suppress his entire videotaped statement, claiming the detectives violated Tooley's Fifth Amendment privileges when they continued to question him after he invoked his right to counsel. On April 9, 2007, the circuit court conducted a suppression hearing. At the hearing, the Commonwealth played Tooley's first and second interviews for the court, and then called Detective Halbleib as its only witness.
On June 22, 2007, the circuit court suppressed Tooley's first interview, concluding the detectives improperly continued to interrogate Tooley after he had invoked his right to counsel. However, the circuit court declined to suppress Tooley's second interview, finding Tooley had initiated the conversation with the detectives by requesting to speak with them and that, based upon the totality of the circumstances, Tooley knowingly, intelligently, and voluntarily waived his previously invoked right to counsel.
On November 18, 2009, a jury trial was held. The Commonwealth played Tooley's unsuppressed confession for the jury. The jury ultimately found Tooley guilty of Second–Degree Manslaughter and Tampering with Physical Evidence, and sentenced him to fifteen years in prison. On January 14, 2010, the circuit court entered a judgment consistent with the jury's verdict. Tooley promptly appealed.
Standard of Review
The standard of review for a motion to suppress is twofold. Cummings v. Commonwealth, 226 S.W.3d 62, 65 (Ky.2007). First, we examine the circuit court's findings of fact. Those factual findings are reviewed under the clearly erroneous standard and are deemed conclusive if they are supported by substantial evidence. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky.2001); see also Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, we undertake a de novo review to determine if the law was properly applied to the facts. King v. Commonwealth, 302 S.W.3d 649, 653 (Ky.2010).
To determine whether the circuit court's factual findings were supported by substantial evidence, we reviewed the video recordings of Tooley's first and second interviews, as well as Officer Halbeib's suppression hearing testimony. As indicated by the circuit court, the material facts in this case are largely undisputed due to the videotaped recordings and transcripts thereof. Neither Tooley nor the Commonwealth takes issue with the trial court's factual findings, as set forth in this opinion. Accordingly, the circuit court's findings of fact are supported by substantial evidence, and are therefore conclusive.
Next, we undergo a de novo review of the law as applied to the facts. Tooley contends the circuit court erred when it declined to suppress his confession. In support, Tooley asserts the detectives' failure to end his first interview after he invoked his right to counsel violated the Fifth Amendment to the United States Constitution, rendering his oral confession involuntary. We disagree.
The Fifth Amendment to the United States Constitution, “which applies to the States by virtue of the Fourteenth Amendment,” Maryland v. Shatzer, –––U.S. ––––, ––––, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010), ensures no person “shall be compelled in any criminal case to be a witness against himself [.]” U.S. Const. amend. V. Likewise, Section 11 of the Kentucky Constitution provides “[i]n all criminal prosecutions the accused ․ cannot be compelled to give evidence against himself[.]” To rigidly protect the right against compulsory self-incrimination, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court established the prophylactic rule that, before interrogating a suspect who is in police custody, police officers must warn the suspect that he has the right to have an attorney present. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.
Thereafter, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court “established a second layer of prophylaxis for the Miranda right to counsel.” McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991); Solem v. Stumes, 465 U.S. 638, 644 & fn. 4, 104 S.Ct. 1338, 1342 & fn.4, 79 L.Ed.2d 579 (1984) (noting Edwards “created a protective umbrella serving to enhance a constitutional guarantee”). Specifically, the Court held “an accused ․ having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him [.]” Edwards, 451 U.S. at 484–85, 101 S.Ct. at 1885; see also Ragland v. Commonwealth, 191 S.W.3d 569, 586 (Ky.2006) (“If at any time during a police interrogation the suspect has ‘clearly asserted’ his right to counsel, the interrogation must cease until an attorney is present.” (citing Edwards, 451 U.S. at 485, 101 S.Ct. at 1885)).
Edwards set forth a bright-line rule that all questioning must cease after an accused requests counsel. In the absence of such a bright-line prohibition, the authorities through badger[ing] or overreaching – explicit or subtle, deliberate or unintentional – might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.
Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488 (1984). Under Edwards, any statements obtained by police after a suspect has invoked his Miranda rights are presumed involuntary and thus inadmissible. Montego v. Louisiana, 556 U.S. 778, ––––, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009) (emphasizing the Edwards rule prevents “police from badgering a defendant into waiving his previously asserted Miranda rights ․ by presuming his post-assertion statements to be involuntary”).
Despite Edwards ' bright-line presumption, the Court clarified that Edwards does not prohibit a suspect from engaging in subsequent discussions with the police if the suspect himself, rather than the police, “initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 485, 101 S.Ct. at 1885. Hence, “Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversations or discussions with the authorities.” Minnick v. Mississippi, 498 U.S. 146, 156, 111 S.Ct. 486, 492, 112 L.Ed.2d 489 (1990) (emphasis supplied).
An accused does not re-initiate dialogue with the authorities simply by responding to “further police-initiated custodial interrogation.” Edwards, 451 U.S. at 484, 101 S.Ct. at 1885; see also Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2097–98, 100 L.Ed.2d 704 (1988) (“Any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the ‘inherently compelling pressures' and not the ‘purely voluntary choice of the suspect.’ ” (Citation omitted)). Instead, suspect-initiation “occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case.” United States v. Whaley, 13 F.3d 963, 967 (6th Cir.1994).
In sum, Miranda and Edwards teach us that law enforcement is compelled to immediately cease interrogating a suspect when he asserts his right to counsel. Any further statements law enforcement elicits are presumed involuntary unless the conservation was renewed at the initiation of the suspect, and the suspect subsequently waived his asserted right to counsel. Miranda, 384 U.S. at 473–74; Edwards, 451 U.S. at 484; Talbott v. Commonwealth, 968 S.W.2d 76, 83 (Ky.1998).
If a suspect speaks after invoking his right to counsel, the two-part test first articulated in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), and later re-affirmed in Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (Smith I ) is applied to gauge the admissibility of the suspect's subsequent statements. Smith v. Commonwealth, 920 S.W.2d 514, 517 (Ky.1995) (Smith II ). This bifurcated test first requires the court to determine if “the accused actually invoked his right to counsel.” Smith I, 469 U.S. at 95, 105 S.Ct. at 492–93. If so, the court next ascertains whether (a) the accused “initiated further discussions with the police,” and (b) under the totality of the circumstances, the accused voluntarily, “knowingly and intelligently waived the right he had invoked.” Cummings, 226 S.W.3d at 66 (citing Bradshaw, 462 U.S. at 1045–46, 103 S.Ct. at 2835); Smith II, 920 S.W.2d at 517. If the Bradshaw/Smith I test has been satisfied, the defendant's statements – though made following his initial request for counsel assistance – are deemed voluntary and admissible. Id.
Applying the Bradshaw/Smith I test to the case sub judice, we find that while Tooley unambiguously invoked his right to counsel, he subsequently initiated conversations with the police, and voluntarily, knowingly, and intelligently waived his previously asserted right to an attorney. Accordingly, the circuit court properly denied Tooley's motion to suppress his oral confession.
Tooley's Request for Counsel
While “every use of the word lawyer or attorney by a suspect” need not be considered an invocation of the right to counsel, an accused is not required to “ ‘speak with the discrimination of an Oxford don.’ ” Bradley v. Commonwealth, 327 S.W.3d 512, 515–16 (Ky.2010) (citing Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994)). Instead, this “objective inquiry” only requires an accused to “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459, 114 S.Ct. at 2355. The suspect's request for counsel must be “unambiguous and unequivocal.” Dean v. Commonwealth, 844 S.W.2d 417, 420 (Ky.1992).
There is no doubt that, during his first interview with Detectives Halbleib and Cohn, Tooley unambiguously and unequivocally invoked his right to counsel when he asked Detective Halbleib if he could call his attorney and thereafter affirmatively stated “I need to call my attorney.” At this point, the detectives were required to immediately stop questioning Tooley and end their interview until counsel was present. Edwards, 451 U.S. at 485, 101 S.Ct. at 1885. Instead, after permitting Tooley to look for his attorney's telephone number in a phone book for approximately fifteen minutes, Detective Cohn re-entered the interrogation room and proceeded to question Tooley about the gun found in his possession at the time of his arrest. Tooley again made an unequivocal and unambiguous request for counsel, stating “I want to speak with my lawyer.” Detective Cohn ignored Tooley's request; he continued his attempt to persuade Tooley to dispense with counsel, and questioned Tooley about Vitt's death as if Tooley's request for counsel had not been made.
Detective Cohn's actions can only be construed as badgering Tooley in the precise manner forbidden by Edwards, and constituting a serious violation of Tooley's Miranda rights. See Bradshaw, 462 U.S. at 1044, 103 S.Ct at 2834. Had Tooley confessed at this time, his confession would undoubtedly have been inadmissible. Bradley, 327 S.W.3d at 518–19 (holding the trial court erred in denying the defendant's motion to suppress because the investigating detective failed to cease interrogating the defendant after he invoked his right to counsel).
Initiation of Dialogue Following Tooley's Request for Counsel
Because it is evident Tooley unambiguously invoked his right to counsel, the crux of our inquiry focuses on the other part of the Bradford /Smith I test, i.e., whether Tooley initiated discussions with the detectives, and whether he voluntarily, knowingly, and intelligently waived his previously asserted right to counsel.
As noted, a suspect in police custody retains the discretion to continue discussions with the police, even following a Miranda/Edwards violation, provided the “suspect himself initiates the dialogue with the authorities” Wyrick v. Fields, 459 U.S. 42, 45–46, 103 S.Ct. 394, 395, 74 L.Ed.2d 214 (1982), and the mere response to further interrogation after the right is asserted cannot constitute initiation under Edwards. Edwards, 451 U.S. at 484, 101 S.Ct. at 1885. An accused initiates the conversation when his words “evince[ ] a willingness and a desire for a generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045–46, 103 S.Ct. at 2835; see also Smith II, 920 S.W.2d at 518 (explaining the word “initiation” should be afforded its common, ordinary meaning).
Here, at approximately 1:29 a.m., an unidentified law enforcement officer terminated Detective Cohn's further interrogation of Tooley, declaring “hey, we're done.” At that point, Detective Cohn exited the interrogation room. Shortly thereafter, officers prepared to transport Tooley to the local jail. While outside the presence of the detectives, Tooley decided he wanted to tell the detectives what happened and asked to speak to them. Detective Halbleib again began recording the conversation and informed Tooley he could not talk with him because Tooley had requested an attorney. Tooley then confirmed he no longer wanted an attorney, and he wanted to tell the detectives his side of the story. Tooley's actions and words clearly “evinced a willingness and desire” to discuss the events for which he was arrested. Bradshaw, 462 U.S. at 1045–46, 103 S.Ct. at 2835. Accordingly, we find Tooley initiated communications with the detectives of his own accord. Edwards, 451 U.S. at 485, 101 S.Ct. at 1885 (“Had [the suspect] initiated the meeting ․ nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary statements and using them against him at the trial.”).
Tooley cites Ferguson v. Commonwealth, 663 S.E.2d 505 (Va.App.2008), in support of his position that he did not knowingly and voluntarily initiate discussions with the authorities and relinquish his right to counsel. In Ferguson, after the suspect unequivocally invoked his right to counsel, the investigating police officer continued to speak to the suspect, questioning him about the charges and attempting to persuade him to waive his previously invoked right to counsel. Eventually, the investigating officer exited the interrogation room, leaving the suspect in the company of another detective. Following twenty minutes of silence, the suspect simply stated “I messed up.” Acting upon the suspect's statement, the remaining detective began talking with the suspect; the suspect eventually confessed.
The Virginia court concluded the suspect's confession was “the direct result of [the investigating officer's] continued interrogation of the suspect after he invoked his right to counsel[,]” construing the twenty minutes of silence as an extension of the original interrogation. Ferguson, 663 S.E.2d at 514. The Virginia court held that, by continuing to interrogate the suspect after he invoked his right to counsel, the police officer did not honor the suspect's request. Id. at 516. Such failure “tainted any subsequent confession made by [the suspect] while he remained in the continuous custody of police officers.” Id. Applying Edwards' rule that any subsequent waiver “cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation,” Edwards, 451 U.S. at 484, 101 S.Ct. at 1885, the Virginia court suppressed the suspect's confession. Ferguson, 663 S.E.2d at 516.
Relying on Ferguson, Tooley argues his confession was “the direct result of Detective Cohn's continued interrogation of [him] after he invoked his right to counsel, and the 44–minute interval between the [first interview] and the second ‘did not suffice as a break’ in the interrogation sufficient to render [Tooley's] later statements admissible.” (Appellant's Br. 23) (citing Ferguson, 663 S.E.2d at 513). We disagree. Tooley's case is not one in which he merely responded to law enforcement's post-assertion questions. Instead, at the time Tooley asked to speak with the detectives, he was not being interrogated. Unlike the Virginia court, we do not view the forty-four minute interval between Tooley's first and second interviews as merely a pause in the detectives' interrogation. Tooley's first interview indisputably ended, and the second interview commenced only because Tooley decided, outside the presence of his interrogators, that he wanted to speak with the detectives. Hence, Tooley, not the detectives, initiated further discussions of the events surrounding Vitt's death. Ferguson is inapposite.
Tooley Voluntarily, Knowing ly, and Intelligent ly Waived his Right to Counsel
The mere fact that Tooley initiated communication with the detectives does not, by itself, render Tooley's confession admissible. See Smith I, 469 U.S. at 98, 105 S.Ct. at 494 (“Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.”). Instead, we must also determine, based upon “the totality of the circumstances, including the necessary fact that [Tooley], not the police, reopened the dialogue,” Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. at 1885 n. 9, whether Tooley voluntarily, knowingly and intelligently waived his previously asserted right to an attorney. As such, we focus on “the particular facts and circumstances surrounding [this] case, including the background, experience, and conduct of the accused.” Bradshaw, 462 U.S. at 1046, 103 S.Ct. at 2835.
Tooley does not dispute that he waived his right to counsel, but insists that his waiver and confession were given involuntarily. Tooley contends that, because of Detective Cohn's continued interrogation and repeated badgering after he invoked his right to counsel, by the time he received his Miranda warnings the second time, they had been rendered meaningless and inadequate. At that point, Tooley argues, he could no longer knowingly and voluntarily relinquish his right to counsel, rendering his confession involuntarily. Stated differently, Tooley asserts his subsequent waiver of his right to counsel was not voluntary because, as in Ferguson, his confession was simply a delayed product of the coercive questioning and inappropriate badgering by Detective Cohn during Tooley's first interview. We are not persuaded by Tooley's argument.
Tooley argues, in effect, for a bright-line rule that, once a suspect invokes his right to counsel and the police continue their interrogation, thereby violating Edwards, the suspect's initiation of a conversation with police and his waiver of his previously asserted right to counsel can never be voluntary. However, Miranda and its progeny counsel against adopting a categorical rule presuming all suspect-initiated waivers following a Miranda/Edwards violation are involuntary. See, e.g., Collazo v. Estelle, 940 F.2d 411, 433 (1991) (en banc) (O'Scannlain, J., dissenting) (discussing the impropriety of “establishing the proposition that police misconduct creates a per se violation of Miranda that subsequent voluntary acts of the accused can never render harmless”).
Despite Edwards ' unequivocal prohibition against post-assertion custodial interrogations, we “do not believe the Edwards rule was designed to end any possibility of a voluntary confession after a defendant invokes his right to counsel under the Fifth Amendment, which the police ignore.” Dorsey v. United States, 2 A.3d 222, 229 (D.C.2009) (emphasis supplied). An uncompromising, per se rule prohibiting a suspect from initiating discussions with investigating police officers and waiving his previously asserted rights following a Miranda/Edwards violation would undercut the Supreme Court's stance that an accused who chooses to willingly converse with investigating officers –whether out of a “commendable qualm of conscience or [a] fortunate fit of stupidity” – is free to do so. Dickerson v. United States, 530 U.S. 428, 450, 120 S.Ct. 2326, 2340, 147 L.Ed.2d 205 (2000) (Scalia, J., dissenting); see also Edwards, 451 U.S. at 490–91, 101 S.Ct. at 1888 (“[T]his Court consistently has ‘rejected any paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case.’ ” (Powell, J., concurring) (quoting Michigan v. Mosley, 423 U.S. 96, 109, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (1975) (White, J., concurring))).
In a variety of cases and in a variety of ways, the United States Supreme Court consistently makes one rule clear: a suspect's voluntary decisions to initiate communication with law enforcement and to waive his previously invoked right to counsel supersede the prophylactic measures designed to protect him from involuntary self-incrimination. See Montejo v. Louisiana, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009); Minnick, 498 U.S. at 150, 111 S.Ct. at 489; Roberson, 486 U.S. at 681, 108 S.Ct. at 2097–98; Bradshaw, 462 U.S. at 1044–46, 103 S.Ct. at 2834–35; Edwards, 451 U.S. at 484–85, 101 S.Ct. at 1884–85; Mosley, 423 U.S. at 109, 96 S.Ct. at 329. To hold otherwise would be to “imprison a man in his privileges and call it the Constitution.” Montejo, 129 S.Ct. at 2086 (citing Adams v. United States ex. rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed.2d 268 (1942)).
We decline to adopt a general rule that an Edwards violation by an interrogating police officer cannot be superseded and rendered harmless by the accused's subsequent voluntary conduct.
We also find Tooley's reliance on Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), misplaced. In Seibert, the Miranda violation was a failure to provide any warnings before questioning and, as a result, the suspect confessed before she knew her rights. Id. at 611–12, 124 S.Ct. at 2610.
Unlike Seibert, Tooley's is not a case in which “interrogators question[ed] first and warn[ed] later.” Id. Tooley's first interview occurred only after he had received and invoked his Miranda rights. There is another significant distinction. In Seibert, “[w]hen the police were finished [with the first interview] there was little, if anything, of incriminating potential left unsaid.” Id. at 616, 124 S.Ct at 2612. Tooley, on the other hand, made no incriminating statements in response to Detective Cohn's improper questioning. Further, unlike the detectives in Seibert, Detectives Halbleib and Cohn did not employ an intentional two-step interrogation strategy. The fact remains that but for Tooley's request to speak to detectives who were not in his presence at the time, there was no reason or apparent plan to conduct a second interview. All in all, unlike Seibert, the facts here do “reasonably support a conclusion that the warnings given could have served their purpose,” as explained fully above. Id. at 617, 124 S.Ct. at 2613. The particular exigencies that necessitated a finding of ineffective warnings in Seibert are simply not present in Tooley's case.
For Tooley's argument to persuade us, we must be convinced that, given the totality of his circumstances including Detective Cohn's Miranda/Edwards' violation, his eventual confession was actually involuntary. Thus, our task here is to determine, based upon the specific facts of this case, whether the detectives' failure to scrupulously honor Tooley's invocation of his right to counsel rendered his subsequent confession involuntarily. We agree that Detective Cohn's conduct in deliberately interrogating Tooley after he had invoked his right to counsel was improper. “Such conduct is only relevant to [Tooley's] voluntariness, however, to the extent it deprived him of the ability to freely and deliberately choose to speak with [the] detectives.” People v. Bradford, 929 P.2d 544, 567 (Cal.1997); see also Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (explaining “the relinquishment of the right [to counsel] must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception”).
Talbott v. Commonwealth, 968 S.W.2d 76 (Ky.1998), upon which both the Commonwealth and the circuit court relied, is instructive. In Talbott, law enforcement arrested Talbott at her home for the murder of Christina Poper. After her arrest but before she was transported to the county jail, Talbott requested multiple times to call her attorney. Despite Talbott's invocation of her rights, the investigating detective asked her to provide a statement upon her arrival at the county jail. Talbott again declared that she did not want to give a statement until she talked to her attorney. However, after further conversation between Talbott and the detective, Talbott changed her mind and confessed only to assisting in the disposal of the victim's body. The next day, Talbott contacted the investigating detective and advised that she wanted to tell him “the whole story.” Id. at 79. The detective again advised Talbott of her Miranda rights. Talbott then gave the detective an additional confession, this time confessing not only to the disposal of the victim's body, but also to her involvement in the murder itself.
On appeal, Talbott asserted that both of her written confessions should have been suppressed because they were obtained after she invoked her right to counsel. Our Supreme Court determined that Talbott's first confession was inadmissible because, once Talbott informed the detective that “she did not want to make a statement until she talked to a lawyer, any further conversation concerning that subject was precluded.” Id. at 83. The Court went on to explain that the first confession's inadmissibility did not automatically render the second confession inadmissible. Id. Instead, the Court determined that Talbott's second confession was “clearly admissible” because, unlike the first confession, Talbott initiated the second conversation with the detective, and there was no evidence that Talbott's second confession was the product of duress or coercion, especially in light of the fact that Talbott was re-advised of her Miranda rights prior to her rendering her second confession. Id.
In the case sub judice, as in Talbott, Tooley freely initiated the second interview with the detectives and, prior to his discussion of the events at issue, Detective Halbleib re-Mirandized Tooley. Indeed, as set forth in detail above, Detective Halbleib discussed each individual Miranda warning with Tooley to ensure he fully understood his rights, and Tooley specifically waived each individual right. Additionally, Detective Halbleib asked Tooley multiple times if Tooley wanted to give a statement without his attorney present, to which Tooley responded affirmatively. Tooley also indicated that he was not threatened, nor was he promised anything in exchange for his statement. Tooley was nineteen years old at the time he was interrogated, he has a high school education, and he does not suffer from any mental or physical infirmities. There is nothing inherently suspect about Tooley's personal, physical, or mental background that would impair his ability to understand his Miranda rights and the consequences of waiving those rights. As with the confession in Talbott, there is simply no evidence that Tooley's confession was the “product of duress or coercion.” 968 S.W.2d at 83.
Further, a close examination of Tooley's conduct during the first interview reveals Tooley asked the detectives several times if he was going to jail that night. At the conclusion of the first interview, the detectives informed Tooley he was going to jail; it was at that point that Tooley decided to waive his previously invoked right to an attorney and provide the detectives with a statement. When asked at the beginning of the second interview if the detectives forced or promised Tooley anything in order to obtain his confession, Tooley responded “[t]hat's all I wanted to know, what you told me, I just wanted to ask if I was going to jail tonight[.]” Detective Halbleib again confirmed that, no matter what Tooley did or did not say, he was still going to jail that evening. It appears Tooley's confession was not a product of Detective Cohn's inappropriate questioning, but resulted from Tooley's realization that he was inevitably going to jail that night. Accordingly, we find that based on the totality of the circumstances Tooley voluntarily, knowingly, and intelligently waived his previously asserted right to counsel.
Having considered the totality of the circumstances of this case, and having considered application of the law to those facts de novo, we conclude that Tooley voluntarily, knowingly, and intelligently waived his previously asserted right to counsel. Accordingly, we affirm the Jefferson Circuit Court's denial of Tooley's motion to suppress.