Legal Updates Fall 2014

Court allows surreptitious video recording of incriminating statement into evidence

In US v. Robinette (August 2014) the US District Court, E.D. Tennessee, ruled that the surreptitious video recording of the defendant making an incriminating statement was admissible. From the court's opinion:

"On February 28, 2013, defendant called E-911 to report that his home, which he shared with his girlfriend Kimberly Allen, had been invaded by an unknown person or persons, and that his girlfriend was holding someone at gunpoint in their bedroom. Several officers with the Washington County Sheriff's Department quickly responded to defendant's home, including Officer Wayne Phillips and Lieutenant Edwin Graybeal, III.

Officer Phillips, using a video camera affixed to his uniform, recorded his conversation with defendant. During that recorded conversation, defendant related the circumstances of the invasion of his home, and how there had been multiple similar attempts over a five-year period. In the course of his description of the evening's events, he made at least one incriminating statement regarding his possession of a loaded firearm.

It is defendant's argument that the officers knew at the time defendant was a convicted felon, and their investigation shifted from investigating an alleged invasion of his home to defendant himself as a convicted felon in possession of a firearm. Counsel argues that the recording was secretly made to serve as evidence in defendant's ultimate prosecution and that defendant should have been given a Miranda warning.

Officer Phillips activated his camera to record his conversation with a victim, not a suspect. He did not know defendant was a convicted felon as he conversed with defendant and recorded their conversation, and it was not unusual for Phillips or any other officer to record a victim's account of a crime.

He was not in custody, and his freedom of action was not restricted to any degree. His "interrogation" was merely the statement he made to the officers in support of the complaint he made to the E-911 dispatcher. The fact that the officers then believed it was defendant who committed a criminal offense did not require either a Miranda warning, or a cessation of the recording, since defendant was not in custody. Therefore, it is recommended that defendant's motion to suppress, be denied."

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Court rules that Dr. Shawn Roberson would not be allowed to testify on false confession issues at trial

In White v. Patton (August 2014) the US District Court, N.D. Oklahoma, upheld the lower court's decision to exclude the testimony of Dr. Shawn Roberson on false confession issues. The trial court had ruled that Dr. Roberson's testimony about a possible false confession did not meet the standards of acceptability. From their opinion the District Court stated the following: "Petitioner presented the testimony of Shawn Roberson, Ph.D., to explain the phenomenon of false confessions and its applicability to the voluntariness of Petitioner's confession..... Dr. Roberson identified three (3) areas of concern contributing to the possibility of a false confession in this case: (1) Petitioner's youth, (2) Petitioner's suggestibility, and (3) Petitioner's disenfranchisement from his family.... Dr. Roberson also testified that Petitioner was not incompetent and while mental illness is not a condition precedent for a false confession, Petitioner did not have a major mental illness.... At the conclusion of Dr. Roberson's testimony, the trial judge found that, while Dr. Roberson was an expert in the fields of forensic psychology and false confessions, under OKLA. STAT. tit. 12, S 2702, the information on false confessions had "not developed yet" to the point of giving it credence.... The trial judge further stated that "absent a showing of a demonstrable psychological condition or impairment ... the social science is simply not developed to a point where that decision should be presented to a jury." For those reasons, the trial judge allowed Dr. Roberson to testify during the Jackson v. Denno hearing, but ruled that the testimony would not be allowed at trial."

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Counsel's failure to retain expert witness on false confessions was matter of reasonable trial strategy

In Johnson v. State (June 2014) the Supreme Court of Georgia did not find the defendant's attorney's decision not to call a false confession expert as a witness to be ineffective counsel. From the court's opinion: "At the new trial hearing, Johnson's trial counsel testified that the defense strategy going into trial was for Johnson to take the stand and testify that he had been at home when the crimes were committed, that he knew the details of the crimes only from having heard about them from friends, and that his confession was coerced out of fear. Counsel testified that he had numerous discussions with Johnson about this strategy and prepared him extensively for his trial testimony. At trial, however, once the prosecution had presented its case, Johnson was too shaken and nervous to testify, and thus, unexpectedly, elected not to testify." The court went on to say, "We find no deficient performance or prejudice in counsel's failure to retain an expert witness on false confessions, given counsel's intended strategy of calling Johnson himself to testify that he was coerced into confessing, and Johnson's failure to make any proffer as to what testimony such an expert might have given."

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Social Security Fraud

In US v. Harper (September 2014) the US District Court, W.D. Kentucky, upheld the defendant's incriminating statements that she had given to agents from the Social Security Administration Office of Inspector General office. From their opinion the court stated the following:
Defendant, Janet Harper, is charged in Count 1 of the Indictment with knowingly receiving and retaining stolen property of the Social Security Administration consisting of $82,468.02 in supplemental security income benefits. In Count 2 of the Indictment, Defendant is charged with knowingly executing a scheme and artifice to defraud the Medicaid Program by falsely representing her living situation and marital status. On July 8, 2014, Defendant filed a motion to suppress "any and all statements, admissions and confessions allegedly given by the defendant, whether oral, written or otherwise recorded, which the government proposes to use as evidence against her" based on allegations that that they were involuntary and taken against Defendant's Fifth and Sixth Amendment rights.

At the evidentiary hearing, Agent Baker, Agent Krieger, and Defendant testified that after the Defendant entered the interview room, the Agent informed her of her rights. Specifically, Agents Baker and Krieger testified that Agent Baker read the non-custodial rights form to the defendant that provided in part as follows: "You have the right to remain silent and make no statement at all. Any statement you do make may be used as evidence against you in criminal proceedings. You are not in custody. You are free to leave and terminate this interview at any time." (United States' Exhibit 2.) Defendant signed the signature line on the form and printed her name below the signature line. Defendant acknowledged signing the form and being informed of her rights. In as much as Defendant argued in her initial motion to suppress that her statements should be suppressed as a result of a violation of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1965), the motion is denied.

First, the Court finds that Agent Baker and Agent Krieger did not trick Defendant into signing the statement admitting that she made false statements regarding her living arrangement in her applications for supplemental social security benefits. After considering the testimony of the Agents, Janet Harper, and Ronald Harper, the Court credits the testimony of the Agents regarding the events of the interview. The Court finds that during the interview, Agent Baker informed Defendant he had reason to believe that statements given by her to the Social Security Administration over an 11 year period were false. Defendant admitted that those statements were false, and she voluntarily initialed the statements to acknowledge their falsity. At the request of the Defendant, Agent Baker wrote out the Defendant's statement based on things she communicated during the interview, read the entire statement aloud to the Defendant, and gave the Defendant the opportunity to correct the statement. The Defendant indicated the content of the statement was correct and signed it.

Second, the Court finds that the Defendant's mental condition, medication, lack of medication, or feelings of sadness and nervousness did not render the statement made by Defendant nor the signing of the statement in question involuntary. The Agents testified that Defendant's demeanor during the interview was calm and even-keel; she did not appear to be upset. She talked in a normal tone. Agent Baker testified that she did not appear to have any physical impairment, did not appear to be under the influence of any drugs or alcohol, and did not have any difficulty answering the questions. During the interview, Agent Baker questioned Defendant if she was under the influence of any drugs or alcohol, and she indicated that she was not. Further, the Agents testified that Defendant's behavior did not indicate that she had anything wrong with her mental state that would impair her ability to participate in the interview. The Court credits the Agents' testimony on this issue finding that Defendant was calm, alert, and responsive at the time of the interview."

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Failure to develop and present expert testimony on false confession issues is does not indicate ineffective counsel (value of video taping interrogation)

In Lucas v. Warden (November 2014) the US Court of Appeals upheld the Georgia Supreme Court's decision that petitioner "was not denied effective assistance due to counsel's failure to develop and present expert witness testimony concerning claimed involuntariness of his confession was reasonable." From the court's opinion:

"Lucas later argued to the habeas state trial court that trial counsel were ineffective because they failed to develop and present expert testimony from Dr. Anthony Stringer, a neuropsychologist, and Dr. Randall Tackett, a pharmacology expert, to support their claim that Lucas's intoxication on the day of the murders rendered his confession unreliable. Dr. Stringer testified at an evidentiary hearing that he was hired by trial counsel in March 1999 to conduct a neuropsychological examination of Lucas and to evaluate Lucas's "susceptibility to suggestion from others and his memory and behavior." Stringer testified about Lucas's "horrific family circumstances," his "extensive drug abuse," and "the fact that he had ... a number of incidents where he had suffered blows to the head." Stringer said Lucas tested with an IQ of 110, at the upper end of the average range, but that he suffers from "left hemisphere brain dysfunction," which can be associated with "remember[ing] information in less detail." Stringer added that Lucas, due to this disorder, may have gaps in his memory and might "take information that someone has provided him ... as being accurate." He said he reviewed Lucas's videotaped confession in 2002 and, had he seen it in 1999, he could have testified that the statement contained "gaps with regards to any detail" and "it seemed to be very much responsive to the information that was being presented to him." Stringer said he was not called to testify at the suppression hearing or Lucas's trial.

Dr. Tackett also testified at the state habeas evidentiary hearing. He said that trial counsel contacted him in September 1998 and asked him to assess the effects of drugs and alcohol on Lucas. Tackett explained that Lucas had a family and personal history of drug abuse, which included "everything from cocaine, alcohol, mushrooms, LSD, [and] prescription drugs." According to Tackett, Lucas could not remember much of what happened inside the Moss residence on the day of the murders. Tackett said he informed trial counsel that he "felt strongly that [Lucas] had experienced a blackout or blackouts during the day of the crime." He also testified that Lucas, because of his blackouts, was susceptible to suggestibility, which meant that when Lucas could not recall a detail about the events of the day, he accepted an explanation suggested by someone else. Tackett opined that the combination of drugs and alcohol that Lucas consumed on the day of the murders "made it impossible for Mr. Lucas to understand events as they occurred, much less remember any details later."

The state habeas trial court denied relief on both the performance and prejudice prongs of Strickland. The court observed that Lucas "has never denied involvement in the case, and has never told anyone, in the past or present, that his confession is untrue." To the contrary, the state habeas trial court found that Lucas's statements to law enforcement and others showed he had a particularized memory of the crimes and of shooting Bryan Moss. Indeed, Lucas had "made statements to his Uncle Brad Lucas and Derrick Jackson prior to talking to police saying that he 'messed up real bad' and 'killed somebody,' and told 'Robbie Hunnicutt' on the afternoon of the murders ... that 'he was killing those motherfuckers.' " The court concluded that, combined with the videotaped confession, the other confessions undermined Lucas's claim that police fed him information about the crime and also undermined his experts' opinions that Lucas was in a blackout and without any memory of the crimes. The state habeas trial court found Lucas's story was not likely to have been suggested by Rhode because Lucas viewed Rhode's videotaped statement just before saying "that's bullshit" and specifically recounting events that contradicted some of Rhode's version."

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Value of video recording to demonstrate confession voluntariness

In State v. Glasscock (September 2014) the Court of Appeals of Utah upheld the lower court's decision that defendant's confession was not coerced. From their opinion:

"Glasscock argues that his confession was involuntary because the detectives employed "coercive police interrogation tactics" to take advantage of his unstable mental condition, and he argues that "[s]everal of the [court's] findings of fact" supporting the court's denial of his motion to suppress "were clearly erroneous." Specifically, Glasscock maintains that he was "significantly impaired from alcohol, heroin, pain pills" and that "he suffered from multiple disorders, including 'bipolar Type I,' 'post-traumatic stress,' and 'borderline personality.' " And even though the detectives "knew that Glasscock had consumed a number of impairing substances" that had "significantly impacted [Glasscock's] memory," Glasscock contends that they employed a "false friend technique" and other coercive strategies that "basically forced [him] to say what they wanted [him] to say." After carefully reviewing the evidence in the record, including the video of Glasscock's police interrogation, we agree with the district court that Glasscock's confession was not coerced.

Here, the district court found that Glasscock "was lucid and properly oriented" during his interview with the detectives. Although Glasscock's answers evinced some "hesitation at first," the court determined that he "voluntarily cooperated" throughout the interview. The court also determined that there "was insufficient evidence of intoxication, mental defect, or coercion to justify excluding the interview," so the "confession was fully knowing and voluntary." At Glasscock's urging, we have reviewed the video recording of Glasscock's interrogation and find that the district court's findings and conclusions are unassailable."

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Court rejects testimony of forensic psychiatrist that defendant fits the profile of someone who would be susceptible to giving a false confession

In Coleman v. State (October 2013) the Court of Appeals of Texas, Houston, upheld a lower court's decision to exclude the testimony of a forensic psychiatrist's opinion that the defendant fit the profile of a person susceptible to giving a false confession. From the court's opinion:

"In his second issue, appellant asserts that the trial court violated his constitutional right to present a meaningful defense when it erroneously ruled that Dr. Michael Fuller could not testify as to his expert opinion that appellant fits the profile of someone who would be susceptible to giving a false confession... The erroneous exclusion of evidence offered under the rules of evidence generally constitutes non-constitutional error.... But, constitutional error occurs when the trial court erroneously excludes otherwise relevant, reliable evidence which "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." ... Appellant argues that such constitutional error occurred when the trial court ruled that Dr. Fuller would not be allowed to testify before the jury about his expert opinion that appellant fits the profile of one who would be susceptible to giving a false confession.

The State objected that appellant had failed to satisfy the Nenno test, and the trial court ruled that Dr. Fuller could not testify as to his expert opinion that appellant fits the profile of one who would be susceptible to giving a false confession. Dr. Fuller testified at a hearing outside the presence of the jury so that the trial court could determine the admissibility of his testimony. Dr. Fuller stated that the area of false confessions was within the scope of his field of practice and area of expertise as a forensic psychiatrist. Dr. Fuller outlined three "sub sets [sic] of false confessions that are accepted in the literature and by researchers." He referred generally to 300 cases in the span of two decades in which the results of DNA testing had exonerated individuals convicted of a crime. Dr. Fuller stated that about fifteen to twenty-five percent of these individuals were found to have falsely confessed. According to Dr. Fuller, "false confessions frequently occur in individuals who are emotionally unstable, who have mental illness, [sic] who have impaired cognitive abilities." Dr. Fuller expressed his belief that there is a "legitimate clinical concern" as to whether appellant falsely confessed to the charged offense. According to Dr. Fuller, this concern is a result of appellant's testimony that he falsely confessed and appellant's "psychological profile" which Dr. Fuller described as "one that is very much like the psychological profile of an individual who would be at relatively or higher risk than, say, the average person for making a false confession." According to Dr. Fuller, appellant's psychological profile is consistent with the profile of someone who would falsely confess.

On cross-examination by the State, Dr. Fuller acknowledged that he had never before testified in a court as an expert specifically in the area of false confessions. Dr. Fuller testified he had read reviews of articles by a "Dr. Leo" and reviews of articles by Mr. Saul Kassin. Dr. Fuller also read a 2009 article by Dr. Leo on the topic of false confessions as well as excerpts from the work of Mr. Kassin. Dr. Fuller indicated he found these articles by searching the internet for "false confessions" after evaluating appellant several months before trial. Dr. Fuller stated he had not read The Psychology of Confessions by Saul Kassin. Dr. Fuller acknowledged that he did not teach any courses in false confessions and had not written any articles or books on the topic. Dr. Fuller stated that this case is the first time he has "focused more directly and thoughtfully" on false confessions as a primary issue. Dr. Fuller testified that he based his conclusion that appellant had the profile of a person who would confess falsely on his general mental-status examination of appellant, his clinical interview, and his discussion with appellant of the circumstances at or near the time of the alleged crime. According to Dr. Fuller, he based this conclusion on his findings that appellant was suffering from a major depressive episode with extreme hopelessness about his future, a sense of failure in general about the quality and direction of appellant's life, obsession with military themes of honor and chivalry, and preoccupation with "the notion of laying himself down as part of a tribe or as part of a group..." Dr. Fuller described appellant as a very needy, disturbed young man, who was depressed and hopeless but not psychotic, and probably intermittently intoxicated. According to Dr. Fuller, there is a possibility appellant made a voluntary, false confession to achieve notoriety, attention, and a disturbed sense of fame.

Dr. Fuller did not administer any formal psychological testing of appellant. The only examination he used with appellant was an examination for neurological function, cognitive function, and memory function. Dr. Fuller has heard of the "Johnson Suggestibility Scale," but he has not used that scale and is unfamiliar with it. Dr. Fuller did not tie his opinion that appellant had the profile of a person who would confess falsely to any specific study or article. Nor did Dr. Fuller provide the trial court with a copy of any study or article. Dr. Fuller had not read an article by Kassin cited by the State. Dr. Fuller did not explain how his testimony properly relies upon or uses principles in this field, nor did he cite any article or other source in support of this proposition. There is no objective source material in this record to substantiate Dr. Fuller's methodology as one that is appropriate in the practice of forensic psychiatry.

We presume, without deciding, that the field of Dr. Fuller's expertise is a legitimate one, and that the subject matter of Dr. Fuller's testimony is within the scope of the field. Nonetheless, based upon the lack of evidence showing that Dr. Fuller's testimony properly relies upon or utilizes the principles involved in this field, we conclude that appellant did not satisfy his burden of showing by clear and convincing evidence during the gatekeeping hearing the reliability of Dr. Fuller's methodology for determining whether appellant fits the profile of someone who would be susceptible to giving a false confession..."

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Police are not required to give Miranda advisement of persons they suspect or question, even in a police station, absent custody

In State v. Davis (October 2014) the Court of Appeals of North Carolina upheld the lower court's ruling that defendant was not subject to custodial interrogation, and that defendant's confession was freely and voluntarily given. From the court's decision:

Defendant first argues that the trial court failed to address whether a reasonable person in defendant's position would have believed she was under arrest or restrained to a significant degree, and therefore erred by concluding that defendant was not subject to custodial interrogation during the fourth interview. We disagree.

The Fifth Amendment to the United States Constitution guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The United States Supreme Court has held that the Fifth Amendment bars statements resulting from custodial interrogation from being used against a defendant unless the defendant was administered certain procedural safeguards before responding, specifically being advised of the "right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney [.]" .....

However, the Court has emphasized that... Police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody."

First, the trial court's finding of fact that defendant was not threatened is supported by competent evidence. Although defendant was told by Detective Bowman in the third interview that lying to a federal officer was punishable by up to five years in prison, neither Detective Pollard nor Sgt. Corcione threatened her with arrest or imprisonment during the fourth interview. Rather, Detective Pollard and Sgt. Corcione told defendant that they were unconcerned with the potential consequences of her previous lies and wanted to get to the truth of what happened so that they could find S.D. Because the only interview subject to defendant's motion to dismiss was the fourth interview, Detective Bowman's prior statements to defendant do not render the trial court's finding of fact that defendant was not threatened erroneous.

Second, competent evidence supports the trial court's finding of fact that defendant was not restrained during the fourth interview. Defendant concedes that she was not handcuffed or physically restrained in any way. However, defendant contends that her freedom of movement was restricted to the degree associated with a formal arrest because she was seated in the corner of the interview room and was "crowded" by Detective Pollard and Sgt. Corcione, who were seated on either side of defendant, between her and the door. Although we do not dispute defendant's characterization of the seating arrangement inside the interview room, we do not find that these circumstances amounted to a "restraint" on her mobility. Defendant requested and was allowed to take multiple bathroom and cigarette breaks throughout each of the four interviews. Although she was escorted by an officer for each of these breaks, our Supreme Court has noted that it is "unlikely that any civilian would be allowed to stray through a police station," indicating an unwillingness to consider a police escort for a bathroom break as weighing in favor of a contention that a defendant was in custody.... During the fourth interview, Detective Pollard even suggested that defendant leave and go to a medical center when defendant indicated that she felt pain and stomach illness due to her pregnancy. Defendant declined to leave; she elected to continue speaking to the officers with the hope that they would help her find S.D. Thus, because the record demonstrates that defendant could have left the fourth interview had she desired to do so and generally had the freedom to take breaks whenever she requested them, competent evidence supports the trial court's finding of fact that defendant's freedom of movement was not restrained.

Given that competent evidence supports the trial court's factual findings that defendant was neither threatened nor restrained during the fourth interview, we find no error in its legal conclusion that defendant was not in custody for the purposes of Miranda. In addition to the above, we find competent evidence to support the trial court's findings of fact that: (1) defendant voluntarily went to the police station for each of the four interviews; (2) she was allowed to leave at the end of the first three interviews; (3) the interview room door was closed but unlocked; (4) defendant was allowed to take multiple bathroom and cigarette breaks; (5) defendant was given food and drink; and (6) defendant was offered the opportunity to leave the fourth interview but refused.

We conclude that under the totality of the circumstances, a reasonable person in defendant's position would not have believed that she was formally arrested or restrained to the degree associated with a formal arrest at the time defendant gave incriminating statements during the fourth interview. Therefore, we affirm the trial court's conclusion that defendant was not subject to custodial interrogation.

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Court rejects the suggestion that a loss of visitation rights was coercive

In Holland v. Rivard (March 2014) the US District Court, E.D. Michigan, upheld the lower court's decision to admit the defendant's incriminating statements. From the court's opinion:

The Michigan Court of Appeals rejected the petitioner's claim that a promise induced his confession and found it to be made voluntarily:

The existence of a promise is just one of the circumstances to consider in examining whether, under the totality of the circumstances, the statement was made voluntarily.... Raupp testified that defendant first introduced the topic of speaking with his family, although defendant claims that Raupp brought it up. We find no basis to upset the trial court's determination that Raupp's testimony was more credible on this issue.... Considering that Raupp had no knowledge of defendant's other crimes before defendant told him, Raupp had no reason to promise defendant anything in order to obtain a confession. In fact, Raupp was unaware that there was even a possibility of obtaining a confession or confessions. In addition, Raupp did not have the authority to grant defendant's request to see his family. To the extent that there was any promise, it was merely Raupp's promise to pass along defendant's request to see family to Raupp's supervisors. Accordingly, the record does not support a finding that defendant was induced or coerced into making the incriminating statements, and the trial court did not err in holding that defendant's incriminating statements were not improperly induced by a promise.

The Supreme Court has held that a combination of threats and promises may be sufficient to overbear an interviewee's will and constitute impermissible coercion.... The circumstances in Lynumn are distinguishable from those presented in this case. In Lynumn, the defendant was interrogated in her apartment while surrounded by three police officers and a police informant. The officers threatened that if she did not cooperate, state financial aid for her infant children would be cut off and the children would be taken from her. In this case, the petitioner was not facing threats to the physical and financial well-being of his minor children, or, for that matter, of his mother and fiancee. His desire to prepare his loved ones for his planned confession does not render the confession involuntary or the police conduct coercive. Individuals confess for a host of reasons. Law enforcement officers are not required to attempt to parse out or identify an individual's motivations for testifying.... Here, there is no indication that the petitioner was threatened in any way. Access to loved ones may certainly be reasonably restricted during incarceration. There is no indication that police threatened the petitioner with any loss of visitation unrelated to the fact of his imprisonment.

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Juvenile interrogation - confession volutariness issues

In State v. Anderson (September 2014) the Court of Appeals of Ohio upheld the admissibility of a juvenile's confession; considering the issues of whether or not the defendant (16 years old) made a knowing and intelligent waiver of his rights, and the influence of deceptive interrogation techniques. From the court's opinion:

"Under this assignment of error, Anderson presents two main arguments. The first is that the State failed to prove that he intelligently and knowingly waived his constitutional rights. Anderson's second argument is that the use of deceptive interrogation techniques undermines a vulnerable child's voluntary waiver of rights. We will address each matter separately.

In arguing that Anderson's waiver of rights was neither intelligent nor voluntary, Anderson focuses on the fact that he was treated in the same manner as an adult, without recognition of his individual circumstances or of current research and precedent, which indicate that children need greater protection than adults.

At the time of the interrogation, Anderson was 16 years old, and had prior experience with the criminal justice system. Consistent with the dictates of Miranda, the police explained each right to him and confirmed that he understood his rights. The questioning took place over a period of less than two hours, with one interview lasting about 20 to 30 minutes and the other lasting about a half hour. Although the police did not offer Anderson food or water, or a restroom break, they would have let him take a break if he had asked.

It is true that the police did not call Anderson's parents before speaking with him. However, "the law in Ohio does not require that a juvenile's parent or legal custodian be present during a custodial interrogation." ... "The presence of a parent or custodian during a juvenile's interrogation, therefore, is only one factor to consider in determining whether, under the totality of the circumstances surrounding the juvenile's statements, there is a valid waiver of the juvenile suspect's Miranda rights ." (Citations omitted.) Id.

Anderson's second major issue concerning voluntary waiver involves deceptive interrogation techniques. As was noted, the interrogating detectives falsely told Anderson that he had been identified by witnesses. Anderson contends that a child's ability to understand and resist manipulative tactics is hampered by youthfulness, and that the International Association of Chiefs of Police, in fact, discourages use of deceptive interrogation tactics with children.
"Deception is a factor bearing on voluntariness, but, standing alone, does not establish coercion * * *." ...

Anderson does not suggest, and we have not found, Ohio authority condemning deceptive interrogation techniques in situations involving children. In Ohio, as in other jurisdictions, deception in interrogation is only one factor in assessing voluntariness. For example in State v. Jackson, 333 Wis.2d 665, 2011 WI App 63, 799 N.W.2d 461, the defendant was 15 years old, had an IQ of 73, and was charged with attempted first degree intentional homicide.... The defendant claimed his confession was involuntary due to his IQ and age, as well as the fact that the police had lied to him... However, the court of appeals disagreed, noting that:

The State responds that, while it may not have been true that multiple people had identified Jackson in a lineup, one person had. And misrepresentation or trickery does not make an otherwise voluntary statement involuntary--it is only one factor to consider in the totality of the circumstances. State v. Ward, 2009 WI 60, P 27, 318 Wis.2d 301, 767 N.W.2d 236. As we explained in State v. Triggs, 2003 WI App 91, P 19, 264 Wis.2d 861, 663 N.W .2d 396,

"Inflating evidence of [the defendant's] guilt interfered little, if at all, with his 'free and deliberate choice' of whether to confess, for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime."

After reviewing the totality of the circumstances, we find no evidence that Anderson's waiver was involuntary. Although Anderson was a juvenile, he was 16 and had prior experience with Miranda warnings. Furthermore, there is no indication that Anderson was under the influence of any medication or other substance, that he had low intellectual ability, or that the police used coercive tactics."

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Repeated implied promises of leniency nullify confession admissibility

In State v. Talayumptewa (October 2014) the Court of Appeals of New Mexico upheld the lower court's decision to suppress the defendant's incriminating statements "on the basis that they were the product of coercive police conduct in the form or promises of leniency." From the Appeals court decision:

"Defendant responded to the officers' questions by saying that he could not remember what happened because he was intoxicated when the alleged incidents occurred. In response, the officers repeatedly told Defendant they would be meeting with the district attorney, that his claims not to remember were legally invalid, and that they had the ability to influence the district attorney with respect to the level of charges Defendant faced. Among other similar statements, Officer Pena told Defendant:

You're giving us nothing and that's what we're gonna [sic] go to the D.A.s with ... is that he gave us nothing ... he tried to use the old ... I don't remember because I was intoxicated defense.... And that's what we're gonna tell the D.A He came in and he gave us a convenient excuse.... Oh I was drunk.... Oh I don't remember.... It coulda [sic] happened, but I don't know if it did ... or anything like that.... So if you do remember what happened, just come clean with us.... We're trying to help you here.... Okay, but we can only help you so much.... Okay, I can't go to the D.A.s and be like hey let's ... you know let's cut this guy a break or ... or let's ... you know let's do this or ... let's uh ... you know let's think about it second [sic] if you won't tell us what happened cuz [sic] I can't go to the D.A. with that.... Okay, I can't.... The D.A. ain't gonna [sic] buy that either.

The officers also began to inform Defendant that he was facing multiple felony charges and that they could help him, but only if he remembered. Officer Pena told Defendant:

Okay.... I tried to help you here, I tried to give you a life line, I tried to help, I tried to give you that life preserver for you to help yourself, you don't wanna [sic] take it that's fine.... I'll ... we ... Investigator Ashley will go forward to the ... to the D.A.s with what we have based off what her ... what she's saying 'cuz [sic] you don't want to recant anything she's saying by just saying I was intoxicated, I don't remember ... that's fine, if that's ... that's the road you wanna [sic] go down ... that's fine, okay ... when the warrant comes and when we're putting you in jail ... for multiple felonies okay ... don't say oh wait a minute, I wanna [sic] talk now, because that's gonna [sic] be gone, once you get cuffed and put in jail.

In the specific exchange cited by the district court, the officers also discussed the range of prison terms for different degrees of felonies in response to Defendant's question about how much jail time he was facing. The following discussion then occurred:
Defendant: Is there a way I can like.... The only way I can help myself is to remember, right?

Officer Pena: That would be a big help.

Defendant: And then if I remember and that is what happened I'm still looking at those right?

Officer Pena: No[t] necessarily, uh ... it's still ... we still have to ... it's not like we sit here and we're like okay, we're gonna [sic] charge him for this okay ... we need to get everything done ... we still got some interviews to do and stuff like that, we're gonna [sic] do ... we're gonna [sic] interview everybody then we take our whole case and we give it to the D.A.s and the D.A.s is the one who say ... this and that ... okay?

Officer Ashley: [S]eriousness of the crime is way up here, we can help eventually bring it back down to maybe almost down to nothing ...

Officer Pena: That also depends on ... us being able to go to the D.A.s ... being able to say to the judge you know, he was very ... sorry it was an accident, it was [a] stupid mistake that he did while he was intoxicated ... he came in he was honest about it, he was up front about it ... he did remember finally, he came back in and said hey this is what I remembered.

These statements and the others like them constitute implied promises of leniency because their import was that Defendant would be arrested on serious felony charges if he continued to claim a lack of memory, but that if he made certain admissions, officers would intercede with the district attorney on his behalf, and that they had the ability to have charges reduced or not brought at all.

... The transcript contains numerous statements by the officers throughout the interview, the effect of which was to say that if Defendant gave a statement they would act on his behalf and had the ability to get the charges reduced. This was more than a mere offer to bring Defendant's cooperation to the attention of the district attorney, which courts have found acceptable.

We next turn to the overall question of voluntariness.....

Again, our review of the transcript of the interview supports the district court's ruling. As the district court found, there were a multitude of implied promises of leniency that started at the outset of the interview and continued throughout, constituting coercive police overreaching. We also find it significant that prior to making both the oral and written statements at issue, Defendant indicated that he was acting in an effort to avoid prison... Before writing the apology letter at the request of the officers, Defendant said: "I'll do anything to avoid jail cuz [sic] I don't wanna [sic] to miss out on my daughter[']s life." Also, while making statements purporting to remember the events of the evening, Defendant repeatedly said that his motivation was to avoid jail: "I'm trying to remember because I really don't want to go to jail or anything else.... I'm trying to remember because I wanna [sic] be able to just put this behind me and just move on." "I'm trying to remember but it's ... like I will do anything it takes to avoid jail time." "I'm just trying to remember so I don't ... I just ... you know, I don't wanna [sic] to go to jail."

The State points to the fact that Defendant came voluntarily to the police station, was informed that he was free to leave, and did not appear sleepy, nervous, or intoxicated to the officers. The State also notes that the officers reminded Defendant that they personally would not be making the charging decision. However, while these factors may weigh in favor of voluntariness to some extent, based on the totality of the circumstances, we agree with the district court that they are insufficient to outweigh the coercive effect of the numerous implied promises of leniency made to Defendant by the officers throughout the interview.

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Defendant who scored 53 on IQ test can give a knowing and intelligent waiver of his rights

In Turner v. Pollard (October 2014) the US District Court, E.D. Wisconsin, upheld the lower court's opinion that the defendant, who scored 53 on an IQ test, could make a knowing and intelligent waiver. In this case the defendant had called Dr. Suzanne Lisowski, a clinical psychologist that Mr. Turner had hired, to provide a psychological evaluation. Form the District Court's opinion:

"The detectives testified that they had advised Mr. Turner of his Miranda rights before interviewing him.... They testified that Mr. Turner appeared to be typical of criminal suspects, provided appropriate answers, and did not appear confused.... However, Detective Hensley did appear to provide Mr. Turner with (what would later turn out to be incorrect) guidance: Detective Hensley explained that the police believed that the victim had died from a fall, and that Mr. Turner would not be charged with a homicide if he told the truth....

Dr. Lisowski explained that Mr. Turner was low-functioning. He scored a 53 on an IQ test, indicating mild to moderate retardation, and meaning that he would have difficulty understanding what sort of rights he was waiving in speaking with the detectives... She also testified that Mr. Turner told her that he had confessed because the detectives had a gun in the room.... After Dr. Lisowski asked whether Mr. Turner believed there was a deal, Mr. Turner indicated that he understood he could receive probation if he told the truth.

In spite of having found those limitations, Dr. Lisowski also pointed out a number of indicators that would weigh in favor of a finding that Mr. Turner understood his waiver. Specifically, she noted: that the recordings indicated that Mr. Turner understood the interview process; that Mr. Turner understood the potential for a criminal sentence and that DNA evidence may have been on his clothing; that the detectives were accommodating to Mr. Turner; and that Mr. Turner's apology to a victim's family appeared to genuinely come from Mr. Turner.

After receiving all of this testimony, the circuit court decided that the detectives had given Mr. Turner his Miranda warning and that Mr. Turner had knowingly waived his Miranda rights during the interviews... The circuit court determined that Turner "understood and gave appropriate responses to the questions that were being asked of him," and that his statements were voluntary.

Here, there is conflicting evidence in the record. In favor of coercion is the potentially-misleading statement from Detective Hensley explaining that the police believed that the victim had died from a fall, and that Mr. Turner would not be charged with a homicide if he told the truth; that turned out to be false--though the record does not indicate that the detectives were lying to coerce a confession. Likewise, Mr. Turner's low IQ score and (unverified) belief that there was a gun in the room both favor a finding of coercion.... On the other side of the ledger are: (1) the detectives' beliefs that Mr. Turner was a typical interviewee--a belief that was apparently corroborated by the recordings of the interview; (2) Mr. Turner's apology to the victim's family; (3) the expert's acknowledgment that Mr. Turner understood the interview process and other important information--again corroborated by the recordings; and (4) the officers' accommodations for Mr. Turner, including regular breaks and snacks... In the Court's opinion, the evidence weighs in favor of a finding that there was not coercion or overreaching; the totality of the circumstances establishes that the waiver and statements were taken in a legally proper manner."

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Court finds confession was result of coercive police interrogation - the importance of using extreme care when questioning an individual with limited mental capacity

In People v. Knapp (November 2014) the Supreme Court, Appellate Division, Fourth Dept., New York, overturned the lower court's decision that the defendant's statements were admissible, instead, finding that the defendant did not knowingly, voluntarily, and intelligently waive his Miranda rights because he lacked the capacity to do so, and statements involuntary. From the Appellate court's decision:

"At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People's expert acknowledged that defendant was "intellectually handicapped," with a full-scale IQ of 68, but concluded that defendant was "not that retarded" and could understand his Miranda rights. The defense expert testified that defendant's IQ placed him in the "mentally retarded range of intellectual functioning." Defendant's verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant's "very poor" level of verbal functioning, the defense expert opined that, although defendant was "able to understand the words of the Miranda rights," he was "not capable of intelligently waiving" those rights. He further opined that defendant was "a very suggestible and very compliant man as is not atypical of persons who are mentally retarded," which placed him at risk of falsely confessing.

The record establishes and, indeed, it is undisputed, that defendant has significant cognitive deficits. Defendant was classified as "mentally retarded" in school, and graduated with an Individualized Education Program diploma. The defense expert testified at the Huntley hearing that defendant received a full-scale IQ score of 68 on the Wechsler Adult Intelligence Scale-IV (WAIS-IV), compared to an average score of 100, which placed him in the "[e]xtremely [l]ow range of intellectual functioning" and classified him as "[m]entally retarded" .... Defendant's IQ placed him in the second percentile, meaning that he "scored lower than did 98% of the people his age who were administered the WAIS-III during its development." Significantly, defendant received a verbal comprehension IQ score of 63, indicating a "very, very low, very poor" level of verbal functioning. The defense expert testified at the Huntley hearing that defendant read at a second- or third-grade level, which he described at trial as "what we know as Dick and Jane ran up the hill, that kind of stuff." He estimated that defendant's "comprehension of the words would be considerably lower than the third grade."

The defense expert also administered several tests that were specifically designed to assess defendant's understanding and appreciation of the Miranda warnings. The defense expert testified that defendant's performance on those tests indicated that he "would have difficulty intelligently assessing [and] weighing the circumstances that he's involved in at a particular time." Defendant scored "very poorly," i.e., in the second percentile, on the Function of Rights in Interrogation test. According to the defense expert, that meant that, although defendant understood the individual words used in the Miranda warnings, he was unable to comprehend the import of the warnings or to "intelligently weigh the consequences" of waiving his rights. The defense expert thus opined that, because of defendant's "cognitive and abstracting deficits," he "was not capable of intelligently waiving his Miranda rights".....

The People's expert, who admitted at trial that he had "limited experience in dealing with people with mental retardation," did not dispute defendant's IQ score or take issue with the specific tests administered by the defense expert. Indeed, he characterized the defense expert's report as "well balanced." He concluded, however, that defendant was "not that retarded." The People's expert noted that defendant "knew that there were seven days in a week" and that, although defendant thought that there were six months in a year, he was able to name all of the months. The People's expert did not assess defendant's reading ability or comprehension. The People's expert concluded that, because the Miranda rights "are fairly simple [and] straightforward," defendant was "able to understand the rights when they were read to him." His conclusion was primarily based upon the belief that defendant was "able to function" in the activities of daily living, including personal hygiene, driving and handling his SSI funds. According to the People's expert, defendant
"could live alone. He had a girlfriend. He's been deemed able to handle his own funds. He could buy a truck. He could buy insurance for the truck. So, from my point of view and in talking to him, it was my feeling that, that he could understand the rights."

There is no evidence in the record, however, that defendant was able to live alone or that he had lived alone at any point in his life. Indeed, the record reflects that defendant lived with his parents into adulthood and that, after their death, he lived with other relatives and friends. There is likewise no evidence that defendant "had a girlfriend." Defendant told the police that he had never had a girlfriend, and the record contains no evidence to the contrary. Finally, there is no evidence that defendant was "deemed" or "found" competent by the Social Security Administration to handle his own funds; in that respect, the record establishes only that defendant was the payee on his SSI checks.

Of equal importance was the manner in which the rights were administered to defendant. The defense expert, who reviewed the videotape of the interrogation, noted that the Miranda warnings "were read to [defendant] in a relatively rapid fashion which likely only further confused him given his mental retardation." Our review of the videotape confirms that characterization. In delivering the Miranda warnings, the detective recited each of the rights at a fairly rapid pace, particularly as compared to the pace of the remainder of the interview. The detective then handed defendant a waiver of rights form with defendant's responses already filled in and asked defendant to place his initials next to each of the rights. Significantly, the detective never asked defendant whether he could read or write, and did not inquire about defendant's level of education. The defense expert concluded that defendant "could not read his [ Miranda ] [r]ights on his own because of his 3rd grade reading level." Indeed, even the People's expert acknowledged that the detective "didn't spend a lot of time dwelling on the Miranda rights."

We therefore conclude, based upon the totality of the circumstances, that the People failed to meet their burden of establishing beyond a reasonable doubt that defendant knowingly, voluntarily, and intelligently waived his Miranda rights, and thus that the court should have suppressed defendant's confession on that ground.

(Re voluntariness)

Here, the defense expert opined that defendant is "a suggestible and overly compliant individual, which is not unusual in mentally retarded individuals who are frequently 'yea-saying,' in turn causing him to be easily intimidated by the interrogation process" .... The People's expert acknowledged that "people with an IQ of 68 certainly can be suggestible and can have a need to be compliant." According to the defense expert, individuals who are "yea-sayers" are more likely to agree with a statement if repeatedly asked; thus, prodding or intensive questioning will tend to elicit an affirmative response. In addition to noting his own clinical impressions, the defense expert administered tests specifically designed to measure interrogative susceptibility and compliance, i.e., the "Gudjonsson scales." On the suggestibility scale, defendant scored a 15, which is "higher than the normative data provided for adults, court referrals, and persons with intellectual disabilities, whose average 'total suggestibility' scores were 7.5, 10.9[and] 12.5 respectively." Defendant also scored a 15 on the compliance scale, much higher than the average score of 9 and higher than "the average score for false confessors," i.e., 14.4. According to the defense expert, a person with a score of 15 on the compliance scale would be particularly sensitive to threats and promises made during interrogation. He thus opined, based upon his interview and the test results, that defendant "falls within the parameters of a person who is in danger of false confessions."

We have reviewed the videotape of the interrogation and are therefore " 'not consigned to an evaluation of a cold record, or limited to reliance on the detectives' testimony' .... "review confirms the defense expert's observation that the detective "used techniques that are popularly used in convincing someone to answer questions in a particular way." Specifically, the detective "tried to appear to be a friendly soul, a good cop that might do something to help [defendant] if he gave the correct answer." The detective told defendant that he "knew he wasn't a bad guy"; asked defendant whether he was "an evil man" or "a guy that has a problem that we need to try and fix"; and told defendant "[y]ou don't want people to think that you're an evil person ... I might be able to help you" ... Most of the detective's questions were leading in nature, and he repeated a question when he was not satisfied with defendant's response, urging defendant to "be honest" with him and to tell the truth.... Notably, the People's expert testified at trial that, when interviewing a suggestible subject, it is important not to ask leading questions "[b]ecause they will think that's what [you] want to hear and people are liable to say yes or be agreeable, so forth."

As the defense expert testified at trial, "[w]hat became very clear in the video ... was that [defendant] changed his answers based on the kind of questioning that was done to him. In other words, he was asked the question, the same question over and over again. So it no doubt became clear to him that he was answering the wrong way. So he changed his answers to be what he believed the cop wanted to know." Many, although not all, of defendant's responses consisted of "mmm-hmm," yes, and a parroting back of the detective's statements. The detective also told defendant that he had spoken to the victim and her mother, that the victim was "not lying," and that the medical examination was going to show that "something happened" between defendant and the victim. The defense expert testified that such tactics "would lead [defendant] to question his own memory of the situation which isn't good to begin with. He's got deficits in memory. So if presented with memory that would counteract what he believed to be true, he would change his answer."

We therefore conclude, based upon the totality of the circumstances, including defendant's intellectual limitations, his suggestibility and compliance tendencies, and the tactics employed by the interviewer in this case, that defendant's confession was not voluntary and thus that it should have been suppressed on that ground as well... Thus, we conclude that the judgment should be reversed, defendant's confession suppressed, and a new trial granted.

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Confession voluntariness and the exclusion of clinical psychologist at guilt phase (value of video recording)

In Loza v. Mitchell (September 2014) the US Court of Appeals upheld the Ohio Supreme Court's decision to admit the defendant's incriminating statements, and their decision to exclude the testimony of Dr. Roger Fisher during the guilt phase. From the Court of Appeals opinion:

"Loza argues that Detectives Knable and Jeffery threatened Dorothy Jackson and Loza's unborn baby to coerce Loza into confessing. For example, the detectives asked Loza if he "want[ed] Dorothy to have her baby in a penitentiary" or if he wanted "[his] baby to be put up for adoption to somebody you've never heard of" and told Loza that "[t]hat's what's going to happen."

The Ohio Supreme Court rejected Loza's argument that these statements constituted threats, reasoning:

The detectives' references to Jackson were made in response to appellant's repeated inquiries about what would happen to her. No threats were made concerning Jackson or what would happen if appellant did not confess. The detectives merely informed appellant of the possible consequences of his actions. By the time the detectives were questioning appellant, Jackson had already told the police about appellant's involvement in the murders. Appellant sought the release of Jackson and he initiated the bargaining for her release. Under these circumstances, the statements made to the detectives were voluntary beyond doubt.

After reviewing the video recording and transcript of Loza's interrogation, we conclude that the Ohio Supreme Court's determination that the detectives did not threaten Dorothy Jackson or Loza's unborn child was not unreasonable. The record supports the court's conclusion that "detectives merely informed appellant of the possible consequences of his actions" when they told Loza that both he and Dorothy Jackson could be imprisoned for their involvement in the killings.... As the court noted, most of the detectives' references to Jackson during the interrogation were in response to Loza's questions about what would happen if Jackson were charged and prosecuted. Viewed in context, the detectives' comments do not appear to be threats. Even if we believed that some statements could be characterized as threats, our mere disagreement is not enough to supersede the Ohio Supreme Court's factual determination on habeas review.
Loza argues that the Ohio Supreme Court's decision upholding the trial court's exclusion of the testimony of Dr. Roger Fisher, a clinical psychologist, at the guilt phase of trial was contrary to and an unreasonable application of Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). In Crane, the Supreme Court held that the "blanket exclusion" of evidence concerning the circumstances of the defendant's confession on the ground that it related only to voluntariness, not credibility, violated the defendant's right to present a complete defense.

Loza sought to introduce testimony from Fisher at the guilt phase of trial to help explain his confession... Loza's counsel stated that he expected Fisher to testify that "Loza's acknowledgment of his participation in the offense and his desire to take full responsibility would have been [the] product of psychological coercion and duress brought upon by the statements of the police officer that his girlfriend would be placed in the electric chair and this child would be sent to never-never land." He said that he expected Fisher to testify that Loza's "letters and repeated affirmations of [his confession] would have been consistent with Mr. Loza's coerced desire to protect his girlfriend and unborn child." The trial court prohibited Loza's counsel from introducing Fisher's testimony at the guilt phase of trial because it had already determined Loza's confession to be voluntary.... He stated that, in his opinion, Loza would have lied to protect Dorothy Jackson and that he would have done anything necessary to protect his unborn child. The Ohio Supreme Court affirmed the trial court's decision to exclude Fisher's testimony at the guilt phase.

Loza argues that the Ohio Supreme Court's decision upholding the exclusion of Fisher's testimony was contrary to and an unreasonable application of Crane. The Ohio Supreme Court reasoned:

The testimony of Dr. Fisher is clearly outside the holding of Crane. The testimony of the witnesses in Crane related to how the physical and psychological environment of the interrogation could have impacted the voluntariness and credibility of the confession. Dr. Fisher's proffered testimony relates to how Loza's individual, psychological makeup, independent of the circumstances surrounding the interrogation, could have impacted the voluntariness and credibility of the confession. Consequently, Crane does not require the admission of Dr. Fisher's testimony.

The jury was able to accurately consider the credibility and weight of the confession by watching it on videotape. They could see and hear the tone and manner of the interrogation, the number of officers present, the physical characteristics of the room, and the length of the interrogation. The jury had the opportunity to evaluate the credibility of the appellant and to give the confession its appropriate probative weight. Because the trial court already had ruled on the voluntariness of the confession and the jury had the opportunity to evaluate the credibility of the confession, the trial court did not abuse its discretion by excluding the testimony of Dr. Fisher during the guilt phase of the trial.

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Pre-arrest silence cannot be used as substantive evidence of guilt

In Commonwealth v. Molina (November 2014) the Pennsylvania Supreme Court held that "the defendant's right against self-incrimination was violated by use of his pre-arrest silence as substantive evidence of guilt." From the Supreme Court's opinion, here are the case details.

"In this case, a jury convicted Michael Molina (Defendant) of third degree murder and related crimes resulting from the savage beating of Melissa Snodgrass (Victim), apparently as a result of drug debts owed by Victim to Defendant.

The issue presented to this Court requires consideration of the Missing Persons Unit detective's testimony and the prosecutor's closing arguments regarding the early days of the investigation into Victim's disappearance. Following a lead that Defendant was holding Victim against her will, the Missing Persons Unit detective assigned to the case went to Defendant's house two days after Victim's disappearance. Pamela Deloe, a second primary prosecution witness, answered the door and asserted that neither Victim nor Defendant were at the house. Accordingly, the detective left her card and asked that Defendant call her. Later that day, Defendant called the detective.

The detective testified regarding the phone call from Defendant:

I asked him--well, before I could even ask him if he was aware of [Victim] being missing, he stated to me that there were--that he didn't know where she was. It was out on the street that someone said that he was involved in her being missing and it wasn't him.

Notes of Testimony ("N.T."), Dec. 14-20, 2006, at 480. The detective then inquired as to when Defendant had last seen Victim. He initially responded that he had not seen her for a year and a half, but then he immediately contradicted his statement, claiming instead that he had not seen her for three months. Subsequent to this contradiction, the detective testified that she asked him to come to the police station to speak to her and he refused:
A. Yes. After he stated that, I asked him if he could come into our office and sit down and talk with me about the case, and he refused. He said he refused to come in.

Q. So this contact that you had with him was over the telephone. Is that what you're saying?

A. Yes, it was over the telephone.

... Defense counsel did not object to the reference to Defendant's refusal to come into the office. In due course, the prosecution concluded its questioning of the detective, and defense counsel did not pursue that issue in his cross-examination...
During closing argument, the prosecutor accentuated Defendant's refusal to go to the police station, and when defense counsel objected, the prosecutor stated before the jury that it was not improper to comment on Defendant's pre-arrest silence:

[Prosecutor:] Look also at what happened in terms of the police investigation in this matter. Three days after this young lady goes missing, three days after she goes missing, detectives are already knocking on the defendant's door because of something they heard, maybe he was holding this person against their [sic] will, and he calls the police back and is very defensive. I mean, before a question's even asked, he denies any knowledge or any involvement with this young lady. He makes contradictory statements to the police about when's the last time that he saw her. First he says, "I saw her a year and a half ago." Then he says, "I saw her three months ago." But most telling, I think, is the fact that the officer invited him. "Well, come on down and talk to us. We want to ask you some more questions about this incident, your knowledge of this young lady," especially because he made these contradictory statements. And what happens? Nothing happens. He refuses to cooperate with the Missing Persons detectives. And why?

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I. Salinas v. Texas
In February 2013, we placed the case on hold pending the decision of the United States Supreme Court in Salinas v. Texas, which, inter alia, raised a claim regarding the use of pre-arrest silence as substantive evidence. As discussed below, the plurality decision of the High Court in that case did not resolve the issue, but instead affirmed the use of the defendant's silence in a fractured decision. Salinas v. Texas, --- U.S. ----, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). Prior to hearing argument, we allowed the parties to submit supplemental briefing addressing Salinas.

Salinas involved a defendant who was interviewed by police regarding a double murder in Houston. At the time of the interview, Salinas had not been arrested nor provided Miranda warnings. Initially, Salinas answered the officer's questions. However, when the officers inquired whether the shotgun shell casings recovered from the scene would match Salinas's gun, he "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." .... "After a few moments of silence, the officer asked additional questions, which petitioner answered."

While the High Court had accepted review in Salinas to resolve the split between the lower courts regarding the applicability of the Fifth Amendment to the use of a non-testifying defendant's precustodial silence as substantive evidence of guilt, it eventually divided on how to resolve the case. Three justices in the lead opinion did not speak to the use of pre-arrest silence as substantive evidence and instead dismissed Salina's claims because "he did not expressly invoke the privilege against self-incrimination in response to the officer's question.".... Two concurring justices did not address the issue of express invocation, but opined that "Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony." .... Finally, four dissenting justices determined that no ritualistic language was needed to invoke the right against self-incrimination, which was implied by the circumstances, and concluded that Salina's right was violated.... Accordingly, as three justices opined that Salinas did not properly invoke his privilege and two justices concluded that the privilege never applies to pre-arrest silence, five justices held that Salinas should not obtain relief. Given the absence of a majority on any rationale, the splintered decision, however, fails to provide guidance as to whether pre-arrest silence is ever protected under the Fifth Amendment if sufficiently invoked or what constitutes sufficient invocation of the right.


... As applied to this case, we determine that Defendant's actions in affirmatively and definitively refusing to come to the police station and ending the phone call were sufficient to invoke his right against self-incrimination and are distinguishable from Salinas's temporary muteness sandwiched between voluntary verbal responses to police questioning. Defendant's invocation is clarified upon consideration of the circumstances of the case. Regardless of whether Defendant had been officially designated a suspect, the detective's testimony demonstrated that Defendant and the detective were aware during the phone call that "[i]t was out on the street that someone said that [Defendant] was involved in her being missing ." N.T., Dec. 14-20, 2006, at 480. Indeed, the prosecutor's closing argument emphasized the detectives' suspicions, noting that three days after Victim's disappearance, they were "knocking on the defendant's door because of something they heard, maybe he was holding this person against their [sic] will."... Moreover, it appears that the detective's suspicions were further raised when Defendant contradicted himself in regard to when he had last seen Victim, prompting her to request that he come to the station. Thus, at the least, both parties to the phone call were aware that he was suspected in the disappearance of Victim, even though the detective was unaware that the case involved a murder. We conclude that refusing to come to the police station to speak further with a detective and ending the phone call, in light of the circumstances of the case, constitutes an invocation of his right against self-incrimination, even absent a talismanic invocation of the constitutional provision.

Accordingly, we conclude that our precedent, and the policies underlying it, support the conclusion that the right against self-incrimination prohibits use of a defendant's pre-arrest silence as substantive evidence of guilt, unless it falls within an exception such as impeachment of a testifying defendant or fair response to an argument of the defense."

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