PD-0665-23 & PD-0666-23 12/20/2023
1. “May a reviewing court rely exclusively on the ‘custodial interrogation environment’ rather than assess whether a defendant was subjected to interrogation regarding the invocation of the right to interrogation counsel and, if so, may a defendant prospectively invoke their right to interrogation counsel before being subjected to questioning?”
2. “May a reviewing court supplant the objective test reviewing the totality of the circumstances surrounding a defendant's statement to determine whether it unambiguously invoked the right to interrogation counsel with a subjective test based on the testimony of a witness?”
Police were investigating the disappearance of an 18-month-old who had been in the custody of Johnson’s live-in girlfriend. There were six other children in the home at the time of the baby’s disappearance. Police began taking voluntary interviews of Johnson, his girlfriend, and several of the children. Johnson’s interview was conducted in an interview room at the police station. He was told he could leave at any time. The detective interviewing him came and went from the room to exchange information with the other interviewing detectives. On her last trip away to see if there were any further questions for him, Johnson left the room, as he was free to do. Out in the hallway, he asked an officer about his children and was told that his children revealed they were present when the baby went missing. He was also told that police investigating a crime could interview children without their parents’ permission. Almost simultaneously with this conversation, an officer approached Johnson and arrested him on outstanding warrants. The following exchange occurred:
Johnson: “Okay, I need to talk to a lawyer.”
Officer: “Okay, but you still need to sit in that room.”
Johnson: “[how am I going to talk to my kids?]. I don’t mind talking to nobody as long as I know my kids are alright.”
The officer assured Johnson that the children’s advocacy center (where his children were) “look[ed] out for children.” Johnson reiterated that he wanted to see his children and returned to the interview room, where he waited in handcuffs for the next six hours. During that time, officers got him water, helped him get off the floor, and loosened his handcuffs. When he asked whether he would be transported somewhere, he was told he may need to be interviewed again. After six hours, a new detective arrived to conduct a custodial interrogation. This detective was never told about Johnson’s statement about a lawyer. After being read his Miranda rights, Johnson agreed to talk and ultimately confessed that he put the baby (who had constantly been throwing up) in a dumpster. This information led police to the baby’s body, and Johnson was charged with capital murder and injury to a child.
Johnson moved to suppress his statements. The trial court granted the motion based on its conclusion that Johnson had unambiguously invoked his right to counsel and that police thereafter unconstitutionally initiated interrogation.
The State appealed, arguing that (1) Johnson wasn’t being interrogated when he made his statement about counsel and (2) his statement wasn’t a clear and unambiguous invocation of counsel. The court of appeals rejected both positions. As to the first point, it acknowledged that a defendant could not anticipatorily invoke his right to counsel “outside the custodial interrogation environment” but observed that this usually involved invocations before a judge in court or before a defendant has been taken to the police station. It saw Johnson’s questioning as ongoing, having only paused thirty-five minutes before the invocation and with the anticipation it would resume in the same interrogation room where he was ordered to return. This changed his status from a voluntary interviewee into a person “subject to custodial interrogation.” It also held Johnson’s statement was an unambiguous invocation of counsel. While one officer thought he was requesting counsel for his children’s interviews, the trial court did not have to give that any credence. Further, the court concluded that wanting to speak to an attorney was enough—regardless of what he wanted to discuss with counsel. It noted that two officers said they would have stopped all questioning based on Johnson’s statement.
The State argues there was no custodial interrogation at the time of Johnson’s statement because, before his arrest, he was being interrogated but wasn’t in custody, and after his arrest, he was in custody but wasn’t being interrogated. It contends that the court’s conclusion otherwise wrongly focuses on where events occurred instead of what the police did or did not do to elicit an incriminating response. It argues that questioning could not have been ongoing because police concluded their voluntary non-custodial interview with Johnson, told him he was free to leave, did not consider him a suspect until hours after his arrest on unrelated warrants, and did not ask him a question for another six hours. It argues there was no evidence that police intended to reinterview him. As to ambiguity in the invocation, it argues the court of appeals wrongly focused on the subjective views of the officers rather than the objective circumstances, like the context of the request (here, in reaction to being told his children were interviewed in a criminal investigation) and his other statements (that he was still willing to talk to them). It points out that saying “I need to talk to a lawyer” does not convey the desire to talk to a lawyer “then and there.” Finally, it argues that dismissing why Johnson wanted a lawyer was inconsistent with precedent requiring an unambiguous invocation of rights.
