State v. Ferguson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
V. ) ID NO.: 1909003282
)
DEJOYNAY FERGUSON, )
)
Defendant. )
Submitted: November 30, 2020
Decided: February 26, 2021
MEMORANDUM OPINION
Defendant’s Motion to Suppress.
DENIED.
James J. Kriner, Esquire and Diana A. Dunn, Esquire, DEPARTMENT OF
JUSTICE, Wilmington, Delaware. Attorneys for the State of Delaware.
Andrew J. Meyer, Esquire and Alanna R. Farber, Esquire, OFFICE OF DEFENSE
SERVICES, Wilmington, Delaware. Attorneys for Defendant.
BUTLER, R.J.
The Court is here called on to enter a ruling with respect to a statement made
by the defendant while in police custody. For the following reasons, the Court will
deny Defendant’s motion to suppress the statement.
FACTS AND HISTORY
Defendant was an employee of Little People Child Development Center on
Wrangle Hill Rd. near Bear, DE. She was assigned to the Infant Room. On Sept. 5,
2019, an infant at the Center died and Defendant became the suspect of the homicide
of the infant. The suspicions were founded, at least in part, on a video monitoring
system in the Infant Room that captured what the State alleges was the Defendant’s
suffocation of the infant.
The focus of the instant motion concerns a statement made by the Defendant
when she was brought to the State Police Troop 2. The Statement was video and
audio recorded and copies have been provided to the Court. The parties are in
agreement that the recorded questions and answers are a sufficient basis upon which
the Court can render an opinion on the motion.
In addition to the recorded statement and transcript, the Court has considered
the briefs of the parties. The defense argues that the Defendant made an invocation
of her Miranda rights and that the subsequent statement should be suppressed as a
post-invocation statement prohibited by Edwards v. Alabama. The State argues that
Defendant made what was at most an ambiguous invocation of her Miranda rights
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and when the police clarified whether she was invoking her right to counsel, the
Defendant knowingly and intelligently waived her rights.
ANALYSIS
The transcript of the interview tells the story of Defendant’s ambiguous
invocation of her right to counsel. After being advised of her Miranda rights, the
following exchange took place:
Detective: And having these rights in mind, do you wish to answer our
questions?
Defendant: Um. Am I able to get an attorney?
Detective: Um. Well, that, it’s – it’s up to you. That’s really your call. I
mean just – just know your rights, you know.
Defendant: Yeah.
Detective: We’re not going to bring an attorney in here.
Defendant: I know that.
Detective: We’re not gonna bring an attorney in here.
Defendant: I know that.
Detective: We – we just won’t talk to you.
Defendant: Yeah, um. I’ll answer questions then (inaudible).
Detective: You say you will?
Defendant: All right.
Detective: Okay.
Defendant: Okay.
Detective: (inaudible)
Detective: ah. I’m sorry?
Defendant: I was gonna say and I do understand my rights that have been read
to me.
Detective: Okay. And just to clarify, you wanna answer – you wanna
[Defendant nods affirmatively]. Okay. And can you spell your first
and last name?
Defendant’s query “Am I able to get an attorney?” might be seen as an
invocation of the right to counsel. The detective’s response was neither positive nor
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negative but rather placed the onus back on the Defendant. After explaining that if
she did so, “we just won’t talk to you,” the Defendant said, “I’ll answer questions
then,” clearly having resolved her dilemma with the decision to speak without
counsel present.
The parties direct the Court to Crawford v. State,1 a case in which the
Delaware Supreme Court traced the lineage of the right to counsel in custodial
interrogations from Miranda v. Arizona2 (establishing the right) to Edwards v.
Arizona3 (requiring that police cease further questioning in the face of an explicit
invocation of the right) to Smith v. Illinois4 (announcing a two-step inquiry for
whether a statement may survive admissibility after an invocation). The Crawford
Court adopted the “clarification approach” to an ambiguous invocation of the right
to counsel: after the subject makes an ambiguous reference to the right to counsel,
further questioning must be limited to clarifying the reference.5
Crawford was a case in which these principles can be seen at work.
Crawford’s ex-girlfriend had been found dead and he knew police were seeking him
for questioning. In a phone call with the police, he asked if he needed an attorney
and, much like our defendant here, the police told him that was his decision. After
1
580 A.2d 571, 573-74 (Del. 1990).
2
384 U.S. 436, 478-79 (1966).
3
451 U.S. 477, 484-85 (1981)
4
469 U.S. 91, 95 (1984).
5
Crawford v. State, 580 A.2d at 575-76.
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visiting with two attorneys, he was on his way to a third consultation when he was
picked up by police, who had search warrants for hair samples and fingernail
scrapings. When interviewed back at the station, he waived his right to counsel and
made statements the State sought to introduce against him. The Supreme Court
affirmed the trial court’s denial of Crawford’s motion to suppress. It is noteworthy
that whatever internal questions Crawford had about consulting a lawyer before
entering the police station, he did not express them in the face of Miranda warnings
administered before questioning.
We have other iterations of the rule in play in Delaware case law. In Restrepo-
Duque v. State, the defendant said “I don’t know. What would be better? If I talk to
a lawyer?”6 The police responded that it was up to him, but then added that “it would
be nice to get your ahh side of the story out…”7 The Supreme Court said that while
the officer’s further comment about getting the suspect’s story out was
“troublesome,” under the “totality of the circumstances,” it did not exceed the
bounds of permitted clarification.8
In Demby v. State,9 the defendant made some confusing references to seeking
counsel in the hours before he was arrested. The attempts at clarifying what he
6
2015 WL 9268145, at *2 (Del. Dec. 17, 2015) (TABLE).
7
Id.8
Id. at *5.
9
1995 WL 717619, at *2 (Del. Super. Nov. 28, 1995).
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meant yielded a statement that “that’s why I want him [an attorney] here so, you
know, give him, ask him real quick questions and you can take it from there.”10
Nonetheless, in seeking further clarification, the defendant said he knew “I have the
right not to say anything” at which point he proceeded to say things.11 The Superior
Court found that from all the circumstances, the defendant had not been interrogated
in violation of his right to seek counsel.
Perhaps epitomizing the opposite end of the spectrum is State v. Phillips,12 a
Superior Court decision in which police were investigating a child death and
interviewed the child’s father twice at the police station. During an interview, the
defendant was asked to participate in a polygraph exam. He responded that “I don’t
know. I still might – I still might have to get a lawyer if I have to say yes or no.”13
The officer assured him that the polygraph results would not be admissible in court.
Several minutes later, defendant was advised of his right to stop answering questions
and he said “I need – I need to call my family. I need to call my uncle that maybe
refer me a lawyer. I need to call somebody.”14 The officer changed the subject.
Again, later, defendant asked to see pictures of his deceased daughter and the
detective, perhaps growing impatient, said “Are we going to keep discussing this or
10
Id. at *3.
11
Id.
12
2004 WL 2521816, at *1 (Del. Super. Oct. 22, 2004).
13
Id. at *2.
14
Id.
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are you going to get a lawyer or what’s the deal?” to which the defendant replied
“Yeah, I’m going to get a lawyer because…” and the detective responded that
“basically then this is going to be a waste of my time.”15 Finally, over 30 minutes
after first raising the prospect of a lawyer, the defendant made an unequivocal
request for counsel.
The Court found the interview failing under the Crawford criteria. The Court
said, “Instead of this required clarification, the officer tried to dissuade Phillips from
seeking counsel by offering him legal advice, i.e. that polygraph tests are not
admissible evidence and thus could not be used against him in the event of a trial.”16
It is also informative that the Court did not rest on the first arguably ambiguous
invocation in ruling in favor of suppression, but rather considered the multiple
ambiguous invocations as indicative that the detective’s failure to stop the
questioning and clarify the defendant’s wishes was intentional or at least reckless
disregard of defendant’s right to counsel.
So informed by the cases of the parameters of our inquiry, we turn back to
case at hand. Here, unlike Phillips, there was but one mention of the right to counsel,
at the outset of the interview. When the defendant said, “am I able to get an
15
Id.
16
Id. at *4.
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attorney?” the detective’s response was consistent with Crawford and Restrepo-
Duque that it was up to her.
When the detective next said, “we are not going to bring one in here” but if
she wishes an attorney “we just won’t talk to you,” these may not have been the best
responses. On one hand they may fall into the category of “legal advice” eschewed
by the Court in Phillips. On the other hand, they may have been simple statements
of fact, devoid of an intent to direct Ms. Ferguson in any particular direction. Had
the discussion of the consequences of invoking the right to counsel continued
further, there is a danger of straying from the Crawford duty to limit further
questioning to seeking clarification whether defendant wanted a lawyer. But the
discussion did not continue, it ended there.
The Court’s job is to consider the totality of the circumstances, including the
rest of the interview, to determine whether the statement was obtained despite
defendant’s asserted right to counsel. Here, there was certainly no unequivocal
assertion of the right to counsel, even though the right was concededly spelled out
to the defendant at the outset when she was Mirandized. The detective’s statement
that they would not procure counsel to bring into the room with them but instead
would simply stop talking with her was not directive or threatening or coercive, in
tone or effect.
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The Courts have not, so far as can be determined, prescribed a specific script
to be followed when a suspect makes an ambiguous request for counsel. But the
detectives’ response that the decision was Defendant’s to make has been upheld in
the appellate courts. The further comment that the questioning would cease was
little more than a statement of fact and the Court does not conclude that it was
intended to overcome Defendant’s choice to request counsel. The defendant’s
somewhat wistful question whether she could have an attorney at some vague, ill-
defined point was at most ambiguous and her election to proceed with a statement
cannot be seen as an invocation of her right to counsel. The Court does not find that
the detective’s “clarifying” questions were intended to undermine her rights. The
Court therefore denies Defendant’s motion to suppress her statements to the police.
CONCLUSION
The Motion to Suppress is DENIED.
IT IS SO ORDERED.
Charles E. Butler, Resident Judge
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