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CSA to Cops: ‘No Means No’ on Explanation and Waiver of Rights Form

A man convicted of murder and armed robbery is entitled to a new trial because the evidence against him included a statement given to police after he had invoked his right to counsel, the Court of Special Appeals has held. Kevin Darnyl Billups wrote “no” on the waiver of counsel portion of a form given to him at Central Booking in Baltimore, known as an explanation of rights form. That should have put an end to all questioning, the appellate court said. “Although the meaning of ‘is’ has been recently debated in extrajudicial circles, we can emphatically state (much to the relief of the bar and public, we’re sure) that ‘no’ means ‘no,’” Judge Peter Krauser wrote for the court.Nevertheless, an officer continued to talk to Billups for about 25 minutes, obtaining a statement that Billups was at the victim’s apartment when the robbery and murder occurred. The detective then asked for permission to tape the interview and, on the tape, read Billups his Miranda rights and asked Billups to change his “no” to a “yes” to indicate that he understood his rights. Billups refused and indicated he wanted the officer to “work with” him, and that he wasn’t going to be “tricked” into going to jail “for nothing.” However, Billups acknowledged on the tape that his statements were made voluntarily and repeated that he had been at the crime scene but had not participated. The lower court refused to suppress the statement at trial. Billups was convicted of second degree murder, robbery with a deadly weapon and related crimes and sentenced to 50 years’ imprisonment.The Court of Special Appeals reversed, rejecting the state’s argument that Billups’ “no” on the waiver of counsel form was ambiguous in light of his later responses.Billups’ statement that the police “were trying to trick him — was not only unambiguous but quite understandable,” Krauser wrote. “Indeed, what other conclusion could he have drawn from what must have appeared to him as a deliberate effort by the police to slip in a waiver of counsel provision in an explanation of rights form and from Detective Jones’s instruction that he sign the waiver of counsel statement if he simply understood it.”The court also addressed Billups’ other grounds for appeal, anticipating a second trial.It rejected his contention that the evidence against him was insufficient to support his conviction, calling it “manifestly without merit.” Also, it found that a shooting victim’s statement within 10 minutes of the robbery was an excited utterance and therefore admissible, even though it was made in response to a question.<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

Case: Billups v. State, CSA No. 1887, Sept. Term 1999. Reported. Opinion by Krauser, J. Filed Nov. 16, 2000.Issue: Did the trial court err in refusing to suppress statements made by a defendant in custody after he had written ‘no’ on the waiver of counsel portion of an explanation of rights form≠Holding: Yes; convictions reversed. While the defendant later was Mirandized, made the same statements and acknowledged them as voluntary, a waiver of the right to counsel is not effective unless it comes before the statement. Here, the defendant’s ‘no’ was unambiguous and all questioning should have ceased until he obtained counsel.Counsel: Asst PD Michael R. Malloy for Billup; Asst. AG Shannon E. Avery for appellee. RecordFax #0-1116-06 (21 pages)