State v. Aten , 130 Wash. 2d 640 ( 1996 )

Madsen, J.

(concurring) — I agree with the majority’s conclusion that the evidence in this case is insufficient to establish the corpus delicti of the crime absent Aten’s statements. Majority at 662. In light of that conclusion, it is unnecessary for the majority to discuss either the admissibility of Aten’s statements under the Fifth Amendment or the sufficiency of the evidence supporting the verdict. I write separately to indicate my disagreement with reaching these issues.

In particular, I am concerned with the substance of the majority’s discussion regarding the officers’ duty to cease questioning following an equivocal request for counsel. The majority relies on State v. Robtoy, 98 Wn.2d 30, 653 P.2d 284 (1982), cert. denied, 494 U.S. 1031, 494 U.S. 1061, reh’g denied, 495 U.S. 966 (1990) in which this court held that any questioning following an equivocal assertion of the right to counsel is strictly confined to clarifying that request. Id. at 39. Here Aten made an equivocal request. In response, the officers turned off the recorder and talked with Aten. They did not talk about her request for counsel but, instead, discussed other subjects for 45 minutes. After that conversation, the officers again advised Aten of her rights under Miranda and she agreed to make a statement.

In Robtoy, this court stated:

[Wjhenever even an equivocal request for an attorney is made by a suspect during custodial interrogation, the scope of that interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it is clarified.

Robtoy, 98 Wn.2d at 39 (quoting Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir. 1979)). Under this analysis, following Aten’s equivocal request, the officers were limited to one subject, clarifying Aten’s request. Under Robtoy, the officers exceeded their authority and Aten’s statement was inadmissible.

However, in Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) the Supreme Court recently ruled that police officers are not required to stop questioning if a suspect in a criminal investigation makes an ambiguous request for counsel. Id. at 2357. In this case, Aten concedes that her request was equivocal. Therefore, pursuant to Davis, the officers had no duty to cease questioning.

In light of Davis, the majority’s reliance on Robtoy to resolve the Fifth Amendment issue in this case is questionable, as is its analysis under Robtoy.

Durham, C.J., and Johnson and Alexander, JJ., concur with Madsen, J.