Murphy v. State , 1989 Tex. Crim. App. LEXIS 25 ( 1989 )

CLINTON, Judge,

dissenting.

The State argues in its brief that the Court of Appeals “correctly analyzed the issue actually presented, i.e. the State’s proof of a valid waiver following the appellant’s invocation of a right to silence,” State’s Brief at 4, and suggests that although “the Court of Appeals did not decide the issue on the basis of waiver ..., waiver would be an appropriate basis for dismissing the petition as improvidently granted,” id., at 6.¹ This Court does not address that notion; however, in focusing on invocation of and honoring the right to remain silent, implicity it correctly finds that “waiver” is not a pivotal question in this case.

On the matter of custodial interrogation, in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court understood when “interrogation must cease,” but was troubled that other parts of a passage in its earlier opinion in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), did not state “under what circumstances, if any, a resumption of questioning is permissible,” and could be read to reach various interpretations leading to “absurd and unintended results.” 423 U.S., at 101-102, 96 S.Ct., at 325-326.² Accordingly, making what it characterized as a “reasonable and faithful interpretation of the Miranda opinion,” the Supreme Court proceeded to reform Miranda, viz:

"... We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether ‘his right to cut off questioning’ was ‘scrupulously honored.’ ”

Id., at 104, 96 S.Ct., at 326. The Supreme Court then reviewed salient facts and circumstances of two separate interrogational sessions by different officers about unrelated crimes, finding that Mosley’s “ ‘right to cut off questioning’ was fully respected in this case.” Id., at 104, 96 S.Ct., at 326-327. And for reasons given, it concluded that “admission in evidence of [his] incriminating statement [made in the second session] did not violate the principles of Miranda v. Arizona.” Id., at 107, 96 S.Ct. at 328. It said nothing about waiver of Miranda rights.

In his concurring opinion Justice White is highly critical of the majority opinion for its implication that “some custodial confessions will be suppressed even though they follow an informed and voluntary waiver of the defendant’s rights.” Id., at 107, 96 S.Ct., at 328. He doubts the conclusion is compelled by Miranda, and in any event insofar as it might be read “to reject volun-tariness as the standard by which to judge informed waivers of that right [to silence],” it should be disapproved. Id., at 108-110, 96 S.Ct., at 328-329. His parting thrust is to want of any reason “to rob the accused of the choice to answer questions voluntarily for some unspecified period of time following his own previous contrary decision.” Id., at 111, 96 S.Ct., at 330.³

But, as Justice Brennan confirms in his dissent, the Court continues to recognize that under Miranda, “the cost of assuring voluntariness by procedural tests, independent of any actual inquiry into voluntariness, is that some voluntary statements will be excluded.” Ante, at [100, 96 S.Ct.,] at 324.” Id., at 113, 96 S.Ct., at 331. See also Stone, The Miranda Doctrine in the Burger Court, 1977 Supreme Court Review 99, at 133: “[T]he Court made clear that the requirement that the police ‘scrupulously honor’ the suspect’s assertion of his right to remain silent is independent of the requirement that any waiver be knowing, intelligent, and voluntary.”

With those observations I agree that the suggestion by the State is properly, albeit implicitly, rejected in the opinion of the Court. However, on the merits, there are some problems.

In the first place, the analysis made by Judge Miller for the Court concentrates narrowly on the factor of lapsed time from one session to another, at 250, when during all that time appellant was confined in jail, already subjected to inordinate pressures, working to undermine his will.

More importantly, the negative finding that follows is made solely on that basis, viz:

“... We find no impropriety on the part of the Houston police in resuming questioning of appellant after the passage of such a significant period of time, and hold that appellant’s statement was admissible in evidence at trial.”

Id., at 250. Let us put aside for a moment that the finding fails to take into consideration other features persuading the Supreme Court that officers had “fully respected” rights of an arrestee. Mosley, 423 U.S., at 104-106, 96 S.Ct., at 327.

That finding seems to assume, despite the fact a suspect has once invoked his right to silence and thereby “cut off questioning,” when “a significant time” has passed, Miranda, as refined by Mosley, provides that a peace officer in the same police department is nonetheless free to “resume” questioning of the suspect. Miranda certainly was read otherwise, and Mosley does not authorize resumption of custodial interrogation with impunity.

In determining when “a resumption of questioning is permissible,” Mosley first concludes that Miranda did not create “a pro se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” Id., at 102-103, 96 S.Ct., at 326.⁴

The opinion then turns to make an interpretation of Miranda which would serve to safeguard its perceived “intention” to assure protection of the right to remain silent, and with that the Supreme Court concluded: whether a statement obtained “after the person in custody has decided to remain silent ” is admissible against him “depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Id., at 104, 96 S.Ct., at 326.

Thus while a peace officer may later approach a suspect who earlier decided to remain silent and exercised his right to cut off questioning on the subject of a particular crime, as appellant did when first interrogated by Foster in Houston, the officer must take care that the earlier initial exercise of that right is “scrupulously honored,” else any resulting statement taken thereafter will not be admissible in evidence.

In determining whether an officer later undertaking further questioning scrupulously honored initial exercise of that right, a court must examine all relevant facts and circumstances. In this cause, for example, having once cut off questioning about the robbery/murder in Houston, that appellant did not request an attorney two weeks thereafter in Palestine would not bear on whether his continuing right to remain silent was fully respected by Sgt. Cain, et al. Mosley, n. 10, at 104, 96 S.Ct., at 326. Instead, relevant considerations are such as reviewed by the Supreme Court in Mosley, viz:

“... After an interval of more than two hours [following exercise of his right to cut off questioning by Detective Cowie], Mosely was questioned by another police officer at another location about an unrelated holdup murder. [Upon again carefully warning him], subsequent questioning DID NOT undercut Mosley’s previous decision not to answer Detective Cowie’s questions. Detective Hill DID NOT resume the interrogation about [the unrelated robberies], but INSTEAD focused exclusively on the [holdup murder], a crime different in nature and in time and place of occurrence from the robberies for which Mosely had been arrested and interrogated by Detective Cowie. [Hill’s] questioning of Mosley about an unrelated homicide was quite consistent zvith.... Mosley’s earlier refusal to answer any questions about the robberies.

This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning [either by continuing interrogation or by persisting in repeated efforts to make him change his mind]. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.

Id., at 104-106, 96 S.Ct., at 326-327.

Quite obviously, then, there are more factors than mere passage of time between an initial barren interrogation and a later productive one to be considered in determining whether the subsequent interrogator “scrupulously honored” the earlier decision to cut off questioning about the same crime. Yet, neither this Court nor the Houston courts seem to give the complete Mosley analysis careful consideration. Thus even a “fresh set” of Miranda wam-ings was not enough in Mosley.⁵ Most emphasized by iteration was that the second round of interrogation was limited to an unrelated holdup murder and, therefore, did not “undercut” Mosley’s previous decision not to answer questions about robberies. Some courts has since found that to be a determinative ingredient. Stone, supra, at 135, n. 192, and accompanying text. But, of course, because here the subject of both sessions is the same crime, that saving feature is not in this cause.⁶ See Watson v. State, 762 S.W.2d 591 (Tex.Cr.App.1988).

While its standard is “devoid of any clear substantive content,” Stone, supra, at 134-135, that the Mosley Court intended its review of such factors as were revealed in its record there to be inclusive is most unlikely. Certainly in other cases facts and circumstances surrounding successive interrogational sessions may present a variety of different factors that are also just as relevant to a determination. Ibid. In the instant cause, however, the respective opinions of this Court and of the Houston (1st) Court of Appeals and the brief for the State fail to make any record reference to evidence of any other factors deemed relevant to our determination.

For all those reasons I believe the issue is being wrongly decided and, therefore, must dissent.

TEAGUE, J., joins this opinion.

1 . Analyzing the "interview" conducted by Sgt. S.A. Cain, et at in the Anderson County jail, and calling it is a "resumption” of the one terminated by Sgt. Brian Foster two weeks before in Houston, the Houston (1st) Court of Appeals pointed out and concluded:

"Here, the Houston police officers resumed the interview with appellant more than two weeks after he exercised his right to silence. Prior to the resumption of that interview, appellant was again given the Miranda warnings. He did not ask for an attorney to be present during the interview, nor did he ask that the interview be delayed so that an attorney could be present. Under the circumstances presented, the trial court was justified in finding that the police officers ‘scrupulously honored’ the appellant's right to cut off further questioning, [citations to Texas cases omitted].’’

2 . Although the Miranda Court clearly stated that in the context of an interrogation about one or more crimes “any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise,” the Mosley Court worried that could be read to mean that such a person “can never again be subjected to custodial interrogation "by any police officer, at any time or place on any subject.” (All emphasis is mine throughout unless otherwise noted.)

3 . If the opinion he recently wrote for the Supreme Court in Patterson v. Illinois, — U.S. -, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), is a harbinger, his view will surely ultimately prevail: “So long as the accused is made aware of the ‘dangers and disadvantages of self-representation’ during postindictment questioning, by use of the Miranda warnings, his waiver of his Sixth Amendment right to counsel at such questioning is “knowing and intelligent.’" Id., at -, 108 S.Ct. at 2399.

4 . Such a conclusion would provide a basis for a rationale to permit resumption of questioning by a different officer at another time and place on a different subject, thus fitting the facts of ' Mosley.

5 . In some quarters, efficacy of subsequent warnings in the face of an earlier exercise of the right to remain silent is seriously questioned. Mere repetition of warnings is thought to trivialize their sanctity, conveying to an accused the idea that former exercise of rights has lost its force and effect, so that a failure again to claim those rights is the consequence of overbearing in continued detention and further questioning. See, e.g., Brennan, J., dissenting in Mosley, at 115, 96 S.Ct. at 332. That subsequent interrogation is about a different crime is "an important consideration,” for it does not indicate "a lack of respect for the prior assertion of silence,” Stone, op cit, supra, at 136.

6 . In Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985), discussed in the majority opinion at pages 249-250, sifter Phillips was arrested in Los Angeles, he was immediately warned, taken to the police department where Detective Garza told him he was under arrest for arson, and proceeded to question him for some hour and a half that day and several hours the next morning, but the opinion does not reveal the subject and content except to allude a wide ranging discussion about his "life in New York, Houston and Los Angeles.” Id., at 890. There is no suggestion at all that during any of those sessions Phillips ever claimed or exercised his right to silence.

Shortly before noon, a Los Angeles officer interrupted and announced that Phillips had to leave then for lunch. According to the opinion the Detective Garza asked Phillips "whether he wanted to discuss his activities in Houston," and Philips replied that “he ‘wanted a little time’ to think about it.” He was taken to lunch and returned to his cell. Questioning resumed at about 2:00 p.m., and ultimately Phillip confessed to a capital murder in Houston. Ibid.

The Court interpreted his response to be a “request,” and found the "request” was “an invocation of [his] right to remain silent at that time." Id., at 891. Now, the majority says "the questioning ceased and [Phillips] was given approximately two hours to think about whether he wanted to talk to the detectives." At 250. (Another interpretation — more consistent with the finding made by the trial court that Phillips never told Detective Garza that "he wanted to remain silent” or "he wanted to terminate the interview," id., at 890 — is that Phillips did not seek to "cut off questioning," but rather was taking advantage of a break for lunch to consider his alternatives when interrogation would surely resume after lunch.) In the event, for reasons discussed ante Phillips is far away from controlling decision in this cause.