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NO. 11-516 EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA,
Appellee,
V. FROM GUILFORDCOUNTY
NO. 08CRS106912-31,38,40
08CRS 98722,-3
08CRS102652-67
Dwight Braxton Douglas
Defendant-Appellant,
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DEFENDANT-APPELLANT’S BRIEF
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Subject Index
TABLE OF AUTHORITIES...... iii
QUESTIONS PRESENTED...... 1
STATEMENT OF CASE...... 2
STATEMENT OF APPELLATE JURISDICTION...... 3
STATEMENT OF FACTS...... 4
ARGUMENT...... 9
CONCLUSION...... 15
CERTIFICATION OF WORD COUNT...... 1
CERTIFICATE OF SERVICE...... 2
TABLE OF AUTHORITIES
Cases
Edwards v. Arizona, 451 U.S. 477, 479 (1981)...... - 9 -
Jones v. State, 497 So. 2d 1268, 1271 (1986), cert. denied, 484 U.S. 823 (1987). 13 -
Rhode Island v. Innis, 446 U.S. 291 (1980)...... - 10 -
State v. Allen, 200 N.C. App. 709, 719, 684 S.E.2d 526, 533 (2009)...... - 12 -
State v. Bogges, 358 N.C. 676, 687-88, 600 S.E.2d 453, 460 (2004)...... - 11 -
State v. Ladd, 308 N.C. 272, 291, 302 S.E.2d 164, 170 (1983)...... - 11 -
State v. Leak, 90 N.C. App. 351, 355-56, 368 S.E.2d 430, 433 (1988)...... - 12 -
State v. Moses, ____ N.C. App. _____, 698 S.E.2d 688, 692 (2010)...... - 8 -
Statutes
N.C. Gen. Stat. § 15A-1444 (2010)...... - 3 -
Other Authorities
N.C. R. App. P. 4 (2010)...... - 4 -
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NO. 11-516 EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA,
Appellee,
V. FROM GUILFORDCOUNTY
NO. 08CRS106912-31,38,40
08CRS 98722,-3
08CRS102652-67
Dwight Braxton Douglas
Defendant-Appellant,
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QUESTIONS PRESENTED
- Did the trial court err in denying the Defendant’s motion to suppress when the Defendant asked for an attorney and then the State continued questioning after the Defendant’ s initial requestfor a lawyer and made comments that the State really wanted to talk to the Defendant, and commented that the Defendant probably would not be contacted by a court appointed attorney for several days?
STATEMENT OF THE CASE
The Defendant was arrested on multiple warrant on November 6, 2008. The Defendant was arrested on charges of Robbery with a Dangerous Weapon, (six counts), First Degree Burglary (three counts), Kidnapping (three counts), conspiracy (two counts) (JA 1-29). On January 5, 2009, the State returned indictments on the same charges as were found in the warrants (JA 30-44). The Defendant filed a motion to suppress on January 14, 2010 (JA 45). The trial court conducted a suppression hearing on February 2, 2010, where the court denied the Defendant’s motion on February 3, 2010 (T. V. I & II). The Defendant entered a plea agreement, which reserved the right to appeal the suppression issue, with the State and entered a plea of guilty on February 22, 2010 (JA 48-52). The trial sentenced the Defendant four consecutive sentences of 60 to 81 months. On the first judgment, the trial court sentenced the defendant to 60 to 81 months for cases 08 CRS 106913-15, 16-20. The court then sentenced the Defendant to 60 to 81 months to run consecutive to the first judgment. Next, the court sentenced the Defendant to 60-81 months on cases on 08 CRS 106923-24. The final cases were run consecutive the previous three judgment with a sentence of 60 to 81 months (T. V. III, p. 7). The Defendant entered notice of appeal after the judgment was announced (T.V. III, p. 43).
STATEMENT OF APPELLATE JURISDICTION
The N.C. Court of Appeals has jurisdiction over this matter pursuant to North Carolina General Statute § 15A-1444 and Rule 4 of the North Carolina Rules of Appellate Procedure. N.C. Gen. Stat. § 15A-1444 (2010). N.C. R. App. P. 4 (2010). The Defendant reserved the right to appeal the denial of the suppression hearing (Rpp. 49-53).
STATEMENT OF FACTS
The Superior Court conducted a suppression hearing on February 2, 2010 and February 3, 2010. The State’s primary witness was Detective Kenneth Jones. Judge Spivey presided over the hearing.
Detective Jones interviewed the Defendant, Dwight Douglas prior to the Defendant being served with the arrest warrants. The interview began on October 21, 2008 at 10:30 AM. At an early portion of the interview, the Defendant stated, “I should ask for a lawyer.” The Detective then inquired if the Defendant asked for a lawyer. The Defendant responded, “…yeah.” (T. V.I, p. 9). The Detective then told the Defendant that he had to take him across the street across for processing. The Defendant then asked if he could get a lawyer appointed (T. V.1, pp. 9-12). Detective Jones then responded he could get a lawyer appointed, but it could be several days before a lawyer was actually appointed and was able to visit the Defendant at the jail (T. V.1, pp. 15-27). During this same time period, Detective Jones told the Defendant that he wanted to talk to him because he wanted to hear everybody’s side or “spin”.
The Defendant then told Detective Jones that he wanted to talk to him. Detective Jones then went over the standard Miranda waiver of rights form(T V.1, p. 15-17). The interview with the Defendant lasted approximately fourteen minutes. About eight minutes of the interview concerned obtaining family background and history of the Defendant. Detective Jones spent approximately six minutes discussing the home invasions and robberies with the Defendant (T. V.1, p. 21). After the interview was completed, Detective Jones then took Mr. Douglas to the jail for processing of the arrest warrants.
After the parties presented evidence, the court allowed State and the Defendant to make brief arguments. The Defendant argued that the detective’s actions constituteda clear violation of the Supreme Court’s holding in Edwards v. Arizona. The Defendant’s counsel emphasized the fact that the police told the Defendant they really needed to talk to him but if he wanted to talk to a court appointed attorney that would delay this chance for days while he stayed in jail (T. V. I, pp.38-40).
The State argued that the Detective Jones did not violate the Defendant’s right to counsel. They argued that the Defendant was the one who initiated the interaction with the police after he asked for a lawyer by asking more questions. It was the State’s interpretationof the case law that once the Defendant initiated further contact that law enforcement was allowed to make new contact with the Defendant (T. V. I, pp. 40-42).
Findings by the Superior Court
After hearing from the parties, the superior court told the State and the Defendant that he wished to review the audio recording in its entirety. The court recessed matters until the next day. The next day, February 3, 2010, the parties reconvened. The trial court told the parties that he, Judge Spivey, was going to deny the Defendant’s motion. Judge Spivey went onto make detailed findings of fact. (T. V.II, p. 49).
The court made the following summary of the audio interview. At the 6:00 minute mark, Detective Jones asked Douglas if he wanted to make a statement. At approximately 6:57, Detective Jones asked Douglas if he wanted a lawyer. At the 7:00 mark, the Defendant responded that he did want a lawyer. After the Defendant asked for a lawyer, Detective Jones asked the Defendant to get in touch with him after he secured an attorney. Jones stated that he wanted to hear Douglas’ side of the story and stated that everybody puts their own spin on things (T V.II, p. 50-51).
At the 8:00 mark, the Detective explained the charges in the specific warrants to the Defendant. The detective again told the Defendant that he wished to talk to him. At the 9:30 mark, the Defendant asked to use the restroom and inquires if he could sign a promissory note instead of going to jail. At 9:52 the Defendant asks if he can get a lawyer. Jones then explained that he will take the Defendant to the jail and have the arrest warrants served on him. The Defendant then can make a call from the jail (T. V. I, p. 53).
At the 10:00 minute mark, the Defendant askedDetective Jones if he could have a court appointed lawyer. Detective Jones told Douglas that he could ask for a lawyer at his first appearance in court, which would be the next day, but it could be several days before a lawyer could meet with him (T. V.II, p. 54-55).
At the 11:00 minute mark, the voluntary waived his rights and gave a statement. There appeared to be no defects in the waiver of rights (T. V.II p. 55).
After making the findings of act, Judge Spivey made his conclusions of law. Judge Spivey determined that Edwards v. Arizona and Oregon v. Bradshaw mandated that the State cannot initiate a conversation with a defendant after he has invoked the right to counsel. If interrogation continues, the defendant must reiniate the contact. If the accused initiates the contact, the State must demonstrate that a valid waiver occurred (T. V.II p. 58).
In this case, the Defendant did make a valid invocation of the right to counsel. However, the police officer’s statement after counsel was invoked did not amount to interrogation. This includes the statements by the police wanting to talk to the Defendant at a later date. When the Defendant asked about his charges, he reinitiated the contact with the police. None of the Defendant’s statements could be defined as interrogation (T. V.II p. 60-63).
Plea Entry
On February 25, 2010, the Defendant entered a plea of guilty to five class D felonies and six class E felonies. Judge Doughton sentenced the Defendant to four consecutive sentences of 60 to 81 months. The Defendant entered notice of appeal after the hearing. In the plea agreement as well as on the record, the Defendant reserved the right to reserve to appeal the suppression hearing (Rp. 49-52, T. V.III p. 42-45).
ARGUMENT
- THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT’S MOTION TO SUPPRESS WHEN THE DEFENDANT REQUESTED AN ATTORNEY AND THE STATE CONTINUED TO CONVERSE WITH THE DEFENDANT AND WHEN THE STATE’S STATEMENTS TO THE DEFENDANT MET THE DEFINITION OF INTERROGATION. ISSUE 2 (RP. 87).
Standard of Review
On appeal of a motion to suppress under the Fifth or Fourth Amendment, the court reviews the superior court’s factual findings for clear error and the conclusions of law de novo. State v. Moses, ____ N.C. App. _____, 698 S.E.2d 688, 692 (2010).
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The trial court erred in denying the Defendant’s motion to suppress. The facts of this case indicate that the Defendant asked for a lawyer. After the Defendant asked for a lawyer, the police told the Defendant that they really wanted to hear his side of the story as they had talked to many people relevant to the investigation. After making this statement about wishing to talk to the Defendant, the police also told the Defendant that if he requested a court appointed lawyer, it would be probably several days before a lawyer could talk with him.
The United States Supreme Court’s holdings in the cases of Edwards v. Arizona and Rhode Island v. Innis provide the foundation for the analysis for the invocation of the right to lawyer under Miranda and the Fifth Amendment of U.S. Constitution. In the Edwards case, the court defined the proper procedure for the police talking with the accused after he or she has requested an attorney. In the Innis case, the court defined what constitutes an interrogation by the police, which is of particular relevance in this case. A more thorough review of these two cases is helpful in analyzing the law that applies to this particular case.
In the Edwards case, the Defendant requested a lawyer during his initial meeting with the police when he was taken to the police station after being served with an arrest warrant. Edwards v. Arizona, 451 U.S. 477, 479 (1981). The next day, the police officers returned to the jail to see the Defendant. The Defendant told jail personnel that he did not wish to see anybody. The jail employee told him that he had to talk with the visitors. When the Defendant was taken to the interview room, he told the police that he would talk to them, but he wished to hear the tape of his co-defendant’s statement. The police played the tape for the Defendant. After the tape was played, Defendant waived his Miranda rights and gave a statement that implicated him in the crime. Id.
In the Edwards case, the Supreme Court clarified that the police cannot initiate further contact with the accused after he asks for a lawyer. Id. at 485. The police must either make contact through the Defendant’s attorney or wait until the Defendant initiates further contact with the police. Id. If Edwards had initiated the contact with the police,the police would have been free to listen to the volunteered statements that the Defendant made. Id. at 485-86. However, in Edwards the police initiated the second contact, and the Defendant’s statements were a product of interrogation. Id. at 487. Therefore, the Court reversed the Arizona court’s ruling and ordered the statement to be suppressed.
In the Edwards case, the Supreme Court used their previous definition of interrogation, which came from the Innis case. In Rhode Island v. Innis, the Supreme Court defined interrogation. Rhode Island v. Innis, 446 U.S. 291 (1980). Interrogation includes more than just express questioning by the police. It also included any words or actions on the part of police that are likely to elicit an incriminating response by the Defendant. The court does not look at the subjective intent of the police officers. Instead, they look at the facts from the view of the accused and whether the police actions would likely cause an incriminating response. Id. at 301-02.
The North Carolina Supreme Court still applies the Supreme Court’s holdings in the Edwards and Innis cases. See, State v. Ladd, 308 N.C. 272, 291, 302 S.E.2d 164, 170 (1983); see also, State v. Bogges, 358 N.C. 676, 687-88, 600 S.E.2d 453, 460 (2004). A review of the facts of the Ladd case is helpful on the issue of interrogation after a Defendant asks for a lawyer. In Ladd, the Defendant was charged with armed robbery. The Defendant initially waived his Miranda rights and talked to the police. However, when the police asked about the location of the rest of the money, the Defendant told the police that he did not want to discuss the rest of the money until he talked to a lawyer. After he asked for a lawyer, the SBI Agent stopped questioning and left the car. However, the other detective stayed in the car and urged the Defendant to talk about the money. The detective urged the Defendant to do the right thing for one time in his life. Id. at 281, 302 S.E.2d at 171.
The N.C. Supreme Court ruled that the detective’s statement to the Defendant amount to continuing an interrogation after the Defendant invoked his right to counsel. Because of this, the court ordered that the statement that he would tell the location at later time after talking to an attorney was inadmissible as it was part of the invocation of his Fifth Amendment rights under Miranda. The Court also agreed that anything said after this invocation should have been suppressed as well. Id. at 282-83, 302 S.E.2d at 171.
Several North Carolina cases have held that merely explaining charges to the Defendant does not amount to interrogation. See, State v. Allen, 200 N.C. App. 709, 719, 684 S.E.2d 526, 533 (2009); State v. Leak, 90 N.C. App. 351, 355-56, 368 S.E.2d 430, 433 (1988). In both the Allen and Leak cases, both defendants invoked their Miranda rights. After this done, the police officers explained what the charges would be prior to having the two defendants processed through the detention facility. After the explanation, both Defendants decided that they wanted to talk without a lawyer. However, the facts of the present case are quite different than the facts of Allen and Leak cases.
In the present case, the detectives did much more than just explain the charges. The detective told the Defendant that he wanted to hear the Defendant’s side of the story. He also told the Defendant that he had already talked to most everyone else in the case. He then told the Defendant that he would likely be in jail for several days before a court appointed lawyer could visit him. These statements were made to the Defendant just before he decided to waive his Fifth Amendment Rights and talk to the detective without having counsel present. The officer made these statements in the 7:00 and 10:00 minute mark, and the Defendant waived his rights at the 11:00 minute mark (T. V. II, pp. 51-55).
Under the definition of Rhode Island v. Innis, these statements were the kind of dialogue or actions that are likely to elicit an incriminating response. Telling a defendant who is asking if he could sign a written promise to appear in order not to go to jail that there will be a substantial delay before he could talk to the detective with an attorney is a prohibited form of contact with the accused under Innis.
As the Innis case as well as the Laddcase indicates, the question is not whether the officer acted in bad faith. The question is whether the officer made statements after the accused requested a lawyer that are likely to bring about a response from the accused. The statements in this case are likely to cause such a response.
Several other jurisdictions have found that when the policetell the Defendant that they really want to talk to the Defendant and others have already talkedto the police that this falls withinthe Innis rule. One of the better examples is the Florida case of Jones v. State. See, Jones v. State, 497 So. 2d 1268, 1271 (1986), cert. denied, 484 U.S. 823 (1987). In the Jones case, the police called the Defendant’s mother while the Defendant was on the other extension. This occurred after the Defendant requested an attorney. The police told the Defendant’s mother that they really wanted to talk to the Defendant. They had already talked to a codefendant, and he had implicated her son. Id. at 1270-71.