A murder suspect’s request that he not talk to police anymore until he spoke with a lawyer was an unambiguous invocation of his right to counsel, the state’s top court ruled Tuesday.
The Court of Appeals granted Warren Lee Ballard a new trial Tuesday because a detective pushed him to keep talking after he had asked for an attorney, violating his right to counsel established in Miranda v. Arizona and its progeny.
While in a custodial interrogation, Ballard was given Miranda warnings and chose to waive his rights. But later in the taped interrogation, Ballard stated, “You mind if I not say no more and just talk to an attorney about this.”
The appellate court said these words “constituted an unequivocal invocation of the right to counsel,” and the detective was required to cease all questioning. However, the detective continued with his interrogation, eliciting statements from Ballard that the petitioner was entitled to have suppressed.
Ballard’s attorney, Assistant Public Defender Peter F. Rose, did not respond to requests for comment. Brian Kleinbord, chief of the attorney general’s criminal appeals division, said he could not comment on the opinion because he had not read it.
Fifteen years after Miranda, the U.S. Supreme Court in Edwards v. Arizona said that after the suspect invokes the right to counsel, the suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police.”
Writing for the court, Judge Mary Ellen Barbera said Edwards establishes a “bright-line prohibition” against further questioning because, otherwise, the police might wear down a suspect and draw out information that might incriminate the person, despite the earlier request for counsel.
In Ballard’s case, he was brought in for questioning following the death of Shirley Smith. Smith’s brother, James Miller, contacted authorities after finding her dead on Dec. 13, 2007, in the apartment they shared in Salisbury.
Smith had a broken hyoid bone in her neck, and authorities said her death was a homicide resulting from asphyxia. Ballard was found with the SIM card associated with Smith’s cell phone and taken into custody.
He was indicted on charges of first-degree murder and read his rights, which he waived. After being interrogated for some time, Ballard had the following exchange with the detective, according to the opinion.
Detective Kaiser: “The only way for [you,] Warren to deal with this is to let it out, explain your side of the story so that you can sleep at night. And you can have a clear head, that’s it. Tell me what happened.”
Ballard: “You mind if I not say no more and just talk to an attorney about this.”
Detective Kaiser: “What benefit is that going to have?”
Ballard: “I’d feel more comfortable with one.”
Kaiser, whose first name is not given in the opinion, then cajoled Ballard into continuing to talk, saying that it will be his only opportunity to explain to the detective what happened.
The transcript of the interrogation shows the Ballard made several subsequent statements to the detective, admitting that he had a fight with the victim, “did a choke hold on her,” and “may have hit her in the mouth.” He said she was lying on the bed when he left, still breathing.
Ballard’s attorney argued at a suppression hearing in Wicomico County Circuit Court that his client “unequivocally and unambiguously invoked his right to counsel and to silence.” Judge Donald C. Davis denied the motion. At trial, the court found Ballard guilty of second-degree murder.
On appeal, the Court of Special Appeals affirmed the conviction, agreeing with the lower court that Ballard’s request for an attorney was ambiguous.
The Court of Appeals, however, found Ballard’s statement unambiguous, unlike several comments other courts have deemed vague — “Maybe I should talk with a lawyer,” in Davis v. United States and “Where’s my lawyer?” in Matthews v. Maryland. The court said that in those cases, the suspect was either thinking he might want a lawyer, looking for his lawyer or wondering if a lawyer would be provided for him.
Here, the court said Ballard’s statement is no less ambiguous than a suspect saying he or she would “rather” have an attorney present, a statement the courts have found to be an unambiguous request for counsel.
WHAT THE COURT HELD
Warren Lee Ballard v. State of Maryland, No. 73, Sept. Term 2010. Reported. Opinion by Barbera, J. Filed July 12, 2011.
Should statements made by a suspect during custodial interrogation after he has said “You mind if I not say no more and just talk to an attorney about this,” be suppressed?
Yes, the suspect’s statement is a sufficiently clear articulation of his desire to have counsel present during the remainder of the interrogation.
Peter F. Rose for petitioner; Diane E. Keller for respondent.