Carter v. State

129 Nev., Advance Opinion 2.4
IN THE SUPREME COURT OF THE STATE OF NEVADA
CHRISTOPHER ERIC CARTER, No. 59392
Appellant,
vs.
THE STATE OF NEVADA,
1 L fe
ll )
Respondent.
Appeal under NRAP 4(c) from a judgment of conviction,
pursuant to a jury verdict, of eight counts of burglary while in possession
of a firearm, twelve counts of robbery with the use of a deadly weapon, and
one count of coercion. Eighth Judicial District Court, Clark County;
;St-efa4y-Milee; Judge.
Reversed and remanded.
Karen A. Connolly, Las Vegas,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Ryan J. MacDonald, Deputy District Attorney, Clark
County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, SAITTA, J.:
In this appeal, we address whether a suspect who asks, "Can I
get an attorney?" after he has been advised of his rights under Miranda v.
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Arizona, 384 U.S. 436 (1966), unambiguously invokes his right to counsel,
and if so, whether the State can resume the interrogation of the suspect by
reading him a second set of Miranda warnings and obtaining an otherwise
valid waiver.
We hold that the question "Can I get an attorney?" is an
unequivocal request for the aid of counsel, triggering the requirement that
all interrogation immediately cease. We also hold that once a suspect
invokes his right to counsel, there may be no further interrogation unless
the suspect reinitiates contact with the police, there is a sufficient break in
custody, or the suspect is provided the aid of the counsel that he
requested. For the reasons below, we conclude that appellant's confession
was inadmissible, and because the error in admitting the confession is not
harmless, we reverse the judgment of conviction and remand for further
proceedings consistent with this opinion. 1
FACTS AND PROCEDURAL HISTORY
Appellant Christopher Carter's convictions stem from an
investigation by the Las Vegas Metropolitan Police Department (LVMPD),
in conjunction with the Federal Bureau of Investigation (FBI), into a
series of robberies taking place between October 23, 2003, and February 2,
2005. Law enforcement suspected that the robberies were related due to
the similar modus operandi and relatively small geographical area of the
1 We deny respondent's motion to strike appellant's notice of
supplemental authorities. We have considered all relevant authority
provided by both parties.
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crimes, but theorized that more than one man was responsible due to
witnesses' varying descriptions of suspects' heights and weights and
reports of waiting escape vehicles. Because the suspects' faces were
obscured in each robbery, witnesses were unable to give any facial
descriptions and were only able to identify them as African-American
males. A lead was developed when a witness identified a black Mazda
Miata as the escape vehicle for one of the robberies. FBI agents searched
DMV records and came up with Carter as a possible suspect.
On February 3, 2005, FBI agents went to Carter's home and
examined trash bags placed outside his fence. Inside the bags, they
discovered a white T-shirt with apparent eyeholes cut out of it consistent
with the description of a mask worn during one of the robberies. Based
upon the T-shirt and Carter's identification found in the trash, LVMPD
obtained a warrant. On February 19, 2005, SWAT teams entered Carter's
home, handcuffed his brother and his mother, and placed him under
arrest. Once at the police station, Carter proceeded to confess to multiple
robberies, burglaries, and possession of a firearm. Ultimately, a jury
found Carter guilty of eight counts of burglary while in possession of a
firearm, twelve counts of robbery with the use of a deadly weapon, and one
count of coercion.
Carter moved to suppress his confession prior to trial,
claiming that interrogation began after he invoked his right to counsel.
The district court conducted an evidentiary hearingY At the evidentiary
hearing, Detective Joel Martin testified that while escorting Carter to the
police station after his arrest, he advised Carter of his rights under
Miranda. Martin asked Carter "booking type" questions but nothing
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substantively related to the offenses. According to Martin, during the
drive, Carter expressed "concern" about hiring an attorney, and although
Martin could not recall exactly what was said, he did not interpret it as a
demand for an attorney. Martin admitted that Carter could have asked,
"Can I get a lawyer?" or "Can I get an attorney?"
Carter testified that he asked Detective Martin, "Can I get a
lawyer?" and Martin replied that they could talk about it later. Carter
testified that he also could not remember exactly how he phrased his
statement but submitted that he was requesting an attorney.
During argument, the State conceded that Carter asked either
"Can I have a lawyer?," "May I have a lawyer?," or "Can I have my
lawyer?," and framed the issue before the district court, stating: "This
whole case, or this whole motion, comes down to one thing: Can I have an
attorney? Is that question, is that an unequivocal request to I'm not
speaking to you unless I have my attorney?" The district court found that
Carter asked "Can I get an attorney?" and denied the motion to suppress
his confession, concluding that (1) Carter's statement was ambiguous, and
(2) there was no substantive questioning until after Carter was given a
second set of Miranda warnings at the police station and waived his right
to counsel.
DISCUSSION
On appeal, Carter contends that the district court erred in
denying the motion to suppress his confession, arguing that it was
obtained in violation of Miranda and was therefore inadmissible as a
matter of law. We review "the district court's factual finding concerning
the words a defendant used to invoke the right to counsel" for clear error,
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and "[w]hether those words actually invoked the right to counsel" de novo.
United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994); Rosky v. State,
121 Nev. 184, 190, 111 P.3d 690, 694 (2005).
In Miranda, the Supreme Court determined that the Fifth and
Fourteenth Amendments' prohibition against self-incrimination required
that any interrogation of a suspect in custody "be preceded by advice to the
putative defendant that he has the right to remain silent and also the
right to the presence of an attorney." Edwards v. Arizona, 451 U.S. 477,
481-82 (1981) (citing Miranda, 384 U.S. at 479). In Edwards, the Court
added a 'second layer' of protection. Davis v. United States, 512 U.S.
452, 458 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 176 (1991)).
Under the Edwards rule, once a suspect invokes the right to counsel under
Miranda, he cannot be subject to further interrogation and all questioning
must cease until counsel has been made available to him. Edwards, 451
U.S. at 484-85.
To determine whether, under Edwards, all interrogation must
cease, a court must first "determine whether the accused actually invoked
his right to counsel." Davis, 512 U.S. at 458 (emphasis and internal
quotation marks omitted). "Invocation of the Miranda right to counsel
'requires, at a minimum, some statement that can reasonably be
construed to be an expression of a desire for the assistance of an
attorney." Id. at 459 (quoting McNeil, 501 U.S. at 178). However, "if a
suspect makes a reference to an attorney that is ambiguous or equivocal in
that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel,
our precedents do not require the cessation of questioning." Id. "Second,
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if the accused invoked his right to counsel, courts may admit his responses
to further questioning only on finding that he (a) initiated further
discussions with the police, and (b) knowingly and intelligently waived the
right he had invoked." Smith v. Illinois, 469 U.S. 91, 95 (1984) (per
curiam) (internal citations and quotation marks omitted).
Whether Carter invoked his right to counsel
Following Edwards, we must first determine whether Carter's
statement "Can I get an attorney?" is an unequivocal demand for counsel,
requiring that all questioning immediately cease until counsel is present,
or is merely an ambiguous inquiry into the extent of his rights. Having
compared Carter's reference to counsel to that in Davis, Smith, and other
cases, as well as the context in which those words were spoken, we have
no difficulty in concluding that Carter's statement was an unambiguous
and unequivocal request for the assistance of counsel during questioning.
While "Mlle word attorney has no talismanic qualities" and "[a] defendant
does not invoke his right to counsel any time the word falls from his lips,"
Kaczmarek v. State, 120 Nev. 314, 330, 91 P.3d 16, 27 (2004) (internal
quotation marks omitted), there are no circumstances here that would
suggest to a reasonable officer anything other than that Carter was asking
for the aid of an attorney. It is implausible that Carter was simply asking
if he had the theoretical right to an attorney considering that detectives
had just told him that he had such a right. There were no other words
modifying the statement that suggest Carter was attempting to clarify the
extent of his rights or make a temporal inquiry. See, e.g., Alvarez v.
Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (appellant's question, "Can I get
an attorney right now, man?" was held to be unambiguous in context
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(emphasis added)); People v. Harris, 552 P.2d 10, 11-13 (Colo. 1976)
(appellant's question, "When can I get a lawyer?" was held to be
unambiguous (emphasis added)). Carter did not use words like "might,"
"maybe," "perhaps," or "should" or in any way suggest he was unsure of
whether he wanted an attorney. See Smith v. Endell, 860 F.2d 1528, 1531
(9th Cir. 1988). To hold that a suspect who asks "Can I get an attorney?"
does not invoke his right to counsel would suggest that no statement
phrased as a question could invoke one's right to counsel—a holding
contrary to law and lacking a fundamental understanding of the nature of
human interaction. See, e.g., Davis, 512 U.S. at 461 (noting that under
Miranda and its progeny "questioning must cease if the suspect asks for a
lawyer" (emphasis added)); id. at 470 n.4 (Souter, J., concurring) ("Social
science confirms what common sense would suggest, that individuals who
feel intimidated or powerless are more likely to speak in equivocal or
nonstandard terms when no ambiguity or equivocation is meant."). We
conclude that it is clear, not only by the words used but also given the
circumstances in which they were spoken, that Carter expressed his desire
for the assistance of an attorney, and a reasonable officer would have
understood it as such.
The fact that shortly thereafter Carter communicated that he
was merely "concerned" about an attorney does nothing to alter our
decision. The Supreme Court has strongly repudiated consideration of a
suspect's subsequent statements in order to cast doubt on the clarity of an
initial request. Smith, 469 U.S. at 100 (1984) ("We hold only that, under
the clear logical force of settled precedent, an accused's postre quest
responses to further interrogation may not be used to cast retrospective
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doubt on the clarity of the initial request itself."). Once a suspect requests
an attorney, Miranda and its progeny do not allow police officers to subtly
interrogate the suspect under the guise of clarifying intentions that are
already clear. "In the absence of such a bright-line prohibition, the
authorities through 'badger [ine 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." Id. at 98 (alteration in original) (quoting Oregon
v. Bradshaw, 462 U.S. 1039, 1044 (1983)). Here, Carter expressed in no
uncertain terms that he would like the assistance of an attorney in dealing
with the police. His words were unequivocal and unambiguous and his
request should have been honored.
Whether Carter's waiver was valid
We must next determine whether Carter validly waived his
right to counsel. Id. at 95. Edwards makes abundantly clear that once
counsel is requested all questioning must immediately cease, and that the
right may only be waived if the accused initiates subsequent
communication, there is a break in custody, or he receives the counsel that
he asked for—none of which occurred here. See Kaczmarek, 120 Nev. at
328-29, 91 P.3d at 26. That nothing substantive was asked until after a
second set of Miranda warnings were given and Carter waived his rights
is of no consequence because his prior request for an attorney precluded
any further interrogation under the circumstances presented. Simply put,
once an accused expresses his desire to confer with counsel, there are no
actions that police officers can take to revive questioning other than
honoring that request. Because Carter's confession was an uncounseled
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response to questioning that occurred after he invoked his right to counsel,
it must be suppressed regardless of whether his subsequent waiver was
otherwise valid. Id. at 329, 91 P.3d at 26 ("If police later initiate an
encounter in the absence of counsel and there has been no break in
custody, 'the suspect's statements are presumed involuntary and therefore
inadmissible as substantive evidence at trial, even where the suspect
executes a waiver and his statements would be considered voluntary
under traditional standards." (quoting McNeil, 501 U.S. at 177)).
Because Carter's confession was the linchpin in the case
against him, we cannot say that its admission was harmless. Arizona v.
Fulminante, 499 U.S. 279, 295 (1991) (noting that 'before a federal
constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt" (quoting
Chapman v. California, 386 U.S. 18, 24 (1967), overruled on other grounds
by Brecht v. Abrahamson, 507 U.S. 619, 623 (1993))). Absent his
confession, the entirety of the evidence against Carter is his ownership of
a vehicle consistent with one seen leaving the scene of a robbery, his
ownership of a firearm consistent with one used during the robberies, and
the discovery in bags set out for garbage pickup of a white T-shirt with
apparent eyeholes cut out of it consistent with a facial covering used by
the suspect at two robberies. No other physical or testimonial evidence
placed Carter at any of the robberies. Under the circumstances, we
eid 3 rl 3
v ecause we reverse Carter's convictions, we need not address his
claims that the district court erred by denying his motion to suppress
continued on next page . . .
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cannot say beyond a reasonable doubt that the erroneous admission of
Carter's confession did not contribute to his conviction, and therefore we
are compelled to reverse the judgment of conviction and remand to the
district court for proceedings consistent with this opinion.
J.
Saitta
We concur:
J.
. continued
physical evidence seized by the police and that he was denied his
constitutional right to a fair and impartial jury.
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