Interrogation after invocation of Miranda rights
BOTTOM LINE: The conversation that ensued after defendant’s invocation of his right to an attorney constituted an impermissible custodial interrogation and, therefore, defendant’s inculpatory statements should have been suppressed.
CASE: Phillips v. State, No. 58, September Term, 2011 (filed Mar. 16, 2012) (Judges Bell, Harrell, Greene, Adkins, Barbera, WILNER (retired, specially assigned) & Cathell (retired, specially assigned)). RecordFax No. 12-0316-20, 18 pages.
FACTS: William Nibblett was stabbed to death in his home. Charles Phillips was arrested for the murder and was transported to the State Police barrack in Salisbury and placed in a conference room with Lt. Michael McDermott.
At about 4:15 p.m. on the day of the arrest, Detective Scott Mitchell gave Phillips the Miranda advice of rights, Miranda v. Arizona, 384 U.S. 436 (1966), and Phillips signed a written Miranda waiver. Mitchell then left the room, and McDermott engaged Phillips in some general conversation. Phillips did not want to talk about involvement in the case, so, in an effort to establish a rapport, the conversation dealt with Phillips’ personal life.
After about 45 minutes, Mitchell barged into the interview process and interrupted it. According to McDermott, Mitchell became confrontational with Phillips, indicating that he thought Phillips may have been involved in the homicide, at which point Phillips said that he wanted an attorney. At McDermott’s request, Mitchell then left the room.
McDermott then advised Phillips that his invocation of the right to counsel meant he could not speak to him regarding this case. McDermott further advised Phillips that if he decided to tell his story to the detective, Phillips simply had to reaffirm that he didn’t want counsel and that the detective could talk to him. Phillips decided that he wanted to continue talking.
Only ten minutes elapsed between the time Phillips asked for an attorney and the time he agreed to continue an interrogation. The Miranda advice was not repeated prior to the commencement of the taped interrogation.
In his taped statement, Phillips acknowledged that, in the course of an altercation regarding money that the victim owed him, Phillips grabbed a knife away from the victim and that the victim “ran into” the knife.
Phillips moved to suppress his incriminating statements. The trial court denied the motion. Phillips was convicted by a jury of first-degree murder and armed robbery and was sentenced to life. The Court of Special Appeals affirmed.
Phillips appealed to the Court of Appeals, which reversed.
LAW: The Supreme Court held in Edwards v. Arizona, 451 U.S. 477 (1981), that: (1) an accused “having expressed his desire to deal with the police only through counsel, 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 conversations with the police” and (2) “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484-85.
Whether a conversation between a suspect and the police constitutes an interrogation for Miranda/Edwards purposes is usually fact-dependent. Often, particularly in the Edwards context, what transpires is not a continued “grilling” or even a direct question-and-answer exchange, but something more subtle, requiring a reviewing court to look beyond merely parsing the conversation.
“Interrogation means more than direct, explicit questioning and includes the functional equivalent of interrogation,” which includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Blake v. State, 381 Md. 218, 233 (2004) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).
Further, (1) “[a]lthough the test of whether the police should know their words or actions are reasonably likely to elicit an incriminating response is an objective one, the intent of the police is not irrelevant,” (2) “[i]f a police officer acts with a purpose of getting a suspect to talk, it follows that the officer has reason to know that his or her conduct was reasonably likely to elicit an incriminating response.” and (3) “[w]e focus on the defendant’s perspective rather than on the police officer’s intent.” Blake, 381 Md. at 233-34.
In Blake, the 17-year-old suspect was arrested at his home between 4:30 and 5:00 a.m. in connection with a murder that had occurred about six weeks earlier. Wearing only underwear and no shoes, he was taken to a police station and advised of his Miranda rights. He invoked his right to counsel and then was placed in a holding cell.
About a half hour later, a detective came to the cell, handed Blake a copy of the arrest warrant and a Statement of Charges, explained the charges, noted that they were serious, and told Blake that he needed to read them carefully. The Statement of Charges advised that Blake was charged with first degree murder and that the penalty for that crime was death. In fact, because Blake was under 18, he was not subject to the death penalty. As the detective was leaving, another detective appeared and said to Blake, “I bet you want to talk now, huh!” Blake then agreed to talk and after a re-advisement and waiver of his Miranda rights, made some incriminating statements.
The Court of Appeals concluded that the detective’s remark that triggered Blake’s willingness to talk “could only be interpreted as designed to induce [Blake] to talk and was improper.” Blake, 381 Md. at 235-36.
In People v. Bradshaw, 156 P.3d 452 (Colo. 2007), the suspect was arrested for a parole violation and taken to a police station, where he was questioned about a recent complaint of sexual assault and theft. When the officer informed him that the victim had said that Bradshaw had grabbed her, Bradshaw indicated that if she said that, he needed to speak with a lawyer. Ignoring that response, the officer asked whether the contact was consensual, to which Bradshaw replied in the affirmative.
At that point, the officer asked whether Bradshaw wanted to speak with a lawyer and Bradshaw said yes.
The detective responded that, if Bradshaw wanted a lawyer, he would stop the questioning and that any further questioning would have to be voluntary. At that point, Bradshaw agreed to talk. On that record, the Colorado court held that the interrogation never ended and that the detective’s failure to honor Bradshaw’s request for an attorney constituted a violation of the right to counsel.
The case closest on point is State v. Gonzalez, 25 A.3d 648 (Conn. 2011).
Gonzales was arrested for murder and taken to a police station. Before giving him the Miranda advice, the detective told Gonzalez that he would be booked and that the police were giving him the opportunity to tell his side of the story. Gonzalez then asked for a lawyer. The detective told him to sit there and that he would be booked. After about a minute, Gonzalez blurted out that he was not a murderer, and the detective reminded him that he had asked for an attorney and that he should be quiet.
When Gonzalez again said that he was not a murderer, the detective again reminded him that he had asked for an attorney but added that it would have to be his choice to speak without an attorney and inquired whether he wished to do so. No Miranda warnings had yet been given. Gonzalez responded in the affirmative and made some incriminating statements.
The detective’s statement that the interview provided an opportunity for Gonzalez to tell his side of the story was not a routine booking question allowed under Miranda and was “dissimilar to statements or questions directed at suspects that this court has determined were permissible because they were not reasonably likely to elicit an incriminating response from a suspect.” Id. at 656. It was not, the court added, “an objectively neutral question unrelated to the crime” but was “directly related to the murder investigation for which the defendant had been arrested, charged, and was presently being held in custody.” Id. at 656. On that record, the court concluded that the conversation was the functional equivalent of an interrogation which, without the benefit of the Miranda advice, was impermissible.
The message conveyed when the police, having first established a rapport with a suspect who has been arrested and may be facing imminent incarceration, tell the suspect that they want to hear his or her side of the story is that the police are trying to be fair and that dialogue may be helpful to the suspect. That, of course, is rarely the case in fact, but the objective, and sometimes the reality, is that the suspect will believe it to be so and will respond accordingly.
The record revealed that to have been the case here. Phillips was not there as a neutral witness. He was a suspect in a murder. During the first conversation, Phillips was asked about the case and did not want to talk about his involvement. McDermott then switched to more general things. It was after Phillips invoked his right to an attorney that Detective McDermott told him that he wanted to get his side of the story.
The conversation between Phillips and McDermott, after Phillips invoked his right to an attorney, constituted the functional equivalent of an impermissible continuing suppression. Therefore, the inculpatory statements that Phillips made during that conversation should have been suppressed.
Accordingly, the judgment of the Court of Special Appeals was reversed.
COMMENTARY: At the beginning of the hearing on the motion to suppress, defense counsel advised the court that Phillips was interviewed by the police and he asked for a lawyer, and it was because that request was not honored that the motion to suppress was made. Following the testimony, the State’s Attorney noted that the issues were whether Phillips had initiated the conversation and whether doing so constituted a waiver of his right to counsel.
Although Edwards itself was not cited during the proceeding, Oregon v. Bradshaw, 462 U.S. 1039 (1983), which was an Edwards case, was cited. It was clear from the entire context that counsel and the court understood that to be the issue. The trial court ruled that Phillips had initiated the conversation that led to the inculpatory statements and knew what he was doing.
Thus, the issue was preserved for appellate review.
PRACTICE TIPS: Although an express written or oral statement of waiver of the right to counsel usually is strong proof of the validity of any waiver, it is not necessary to establish a waiver. An implicit waiver suffices and a waiver may be implied through “the defendant’s silence coupled with an understanding of his rights and a course of conduct indicating waiver.” Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010).
BOTTOM LINE: Disbarment was the appropriate sanction when, in response to an inquiry from an agency regulating the practice of law in another jurisdiction, attorney deliberately submitted altered and misleading documents concerning the her compliance with a rule governing the practice of law in that jurisdiction.
CASE: Attorney Grievance Commission of Maryland v. Smith, No. 10, Sept. Term, 2011 (filed Mar. 19, 2012) (Judges Bell, Harrell, Battaglia, Green, Adkins, Barbera & MCDONALD). RecordFax No. 12-0319-20, 9 pages.
FACTS: Darlene Smith was admitted to the Maryland Bar in June of 1997. She was also admitted to practice before the United States District Court for the District of Columbia. Smith initially worked as a judicial clerk for the Chief Judge of the District of Columbia Court of Appeals. She subsequently practiced law at a number of firms in the District of Columbia and Maryland, including as a solo practitioner, before settling at the District of Columbia office of Drinker, Biddle & Reath in mid-December of 2008. Although she had practiced law for more than 10 years, largely in offices located in the District of Columbia, Smith had never been admitted to the District of Columbia Bar.
Under the rules governing the practice of law in the District of Columbia, lawyers not admitted to there are permitted to practice law in some circumstances, so long as the attorney makes certain public disclosures about the attorney’s bar status.
In particular, under D.C. Rule 49, an attorney admitted in another state may practice in the District of Columbia for 360 days, provided, among other things, that the attorney’s practice is directly supervised by a member of the Bar, that the attorney applies for admission to the Bar within 90 days after commencing practice in the District of Columbia, and that there is notice to the public of the attorney’s bar status.
Another provision of the D.C. rules allows an attorney located in the District of Columbia to provide legal services in federal court or federal agency proceedings if admitted to practice before the federal court or agency and if the attorney gives prominent notice in all business documents of the practitioner’s bar status and that his or her practice is limited.
In January of 2009, Smith applied for “Admission Without Examination” to the District of Columbia Court of Appeals Committee on Admissions. On October 20, 2009, the Admissions Committee wrote to Smith and asked her to explain why she had delayed seeking admission for such a long period of time, and whether she had complied with the requirements of D.C. Rule 49 and the related advisory opinions of the District of Columbia Committee on Unauthorized Practice of Law.
Smith responded in a letter dated December 8, 2009, in which she stated that her law practice had been an “exclusively federal practice” and that her business cards, correspondence written on firm letterhead, and promotional materials provided the appropriate notice that her admission to the bar was only in Maryland and that she limited herself to a federal practice.
In her letter, Smith enclosed promotional materials and other documents identified as redacted copies of correspondence from her current and previous law firms. The enclosures purported to document the assertions in her letter and included legends stating that Smith had been admitted only in Maryland and that she limited herself to federal practice.
In fact, those disclosures did not appear on the original versions of many of those documents, but had been added by Smith shortly before she submitted them to the Admissions Committee. In January of 2010, Smith met with the General Counsel of Drinker Biddle & Reath to discuss her application.
In February 2010, Smith wrote to the Admissions Committee, and admitted altering many of the documents she had enclosed with her December 8, 2009, letter. Specifically, she acknowledged that she had altered copies of her past correspondence written on Drinker Biddle & Reath stationery, to add the legends “admitted only in Maryland” and “practice limited to matters and proceedings before federal courts and agencies,” and had similarly altered the samples of correspondence she had submitted from three other law firms where she had practiced before joining Drinker, Biddle & Reath.
The Attorney Grievance Commission subsequently charged Smith with violating several provisions of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”). Among the charges were alleged violations of MLRPC 5.5(a) (unauthorized practice of law in another jurisdiction), MLRPC 8.4(a) (misconduct involving a violation of the rules), MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice). The matter was referred to a circuit court for hearing and determination.
The circuit court judge concluded that Smith did not engage in the unauthorized practice of law but that she did violate the other rules cited by the Commission. No exceptions were filed to the judge’s findings and conclusions.
A hearing on those findings and conclusions was scheduled before the Court of Appeals on February 2, 2012. Smith failed to appear, and the Court of Appeals disbarred her in a per curiam order.
LAW: The Court of Appeals agreed with the hearing judge’s conclusion that Smith violated MLRPC 8.4(a) (misconduct involving a violation of the rules), MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice). An attorney who permits false or fraudulent documents to be executed and filed on the public record or falsely certifies or signs documents violates MLRPC 8.4(c) and (d). See, e.g., Attorney Grievance Comm’n v. Coppola, 419 Md. 370 (2011). Thus, there was no need for extended analysis of the application of MLRPC 8.4 to Smith’s conduct.
Smith stipulated that she fabricated exhibits to her bar application to advance her misrepresentations to the Admissions Committee concerning her compliance with D.C. Rule 49 – actions that involved dishonesty, fraud, deceit, and misrepresentation. An applicant’s fabrication of evidence designed to mislead a bar examiner is prejudicial to the administration of the laws governing the practice of law.
When an attorney submits fabricated evidence to cover up a violation of disciplinary rules, the appropriate sanction is ordinarily disbarment, absent “compelling extenuating circumstances.” Attorney Grievance Comm’n v. Payer, ___ Md. ___ (2012). Smith proffered various circumstances in mitigation, including that she had no prior pattern of misconduct, that she had not appeared in court actions in violation of the District of Columbia rules, that she had resigned from her law firm because she recognized that her conduct was sanctionable, that she had cooperated with Maryland disciplinary authorities, and that she was “very embarrassed.”
While these were factors that the Court might consider in fashioning an appropriate sanction, they were not so compelling as to cause the Court to deviate from the presumptive sanction of disbarment in this case.
Smith’s misconduct was not a reflexive exculpatory statement of one unexpectedly confronted with a misdeed. Rather, it was a carefully contrived effort that required a detailed alteration of samples of her past correspondence spanning more than a decade and several law firms. The additions of bogus disclaimers about her bar membership were clearly material to the inquiry of the Admission Committee about her past compliance with D.C. Rule 49.
Indeed, the alterations were the only reason for submitting those particular pieces of correspondence, which were otherwise unrelated to her bar application. The admitted purpose was to mislead the Admissions Committee into believing that she had consistently complied with D.C. Rule 49. Her subsequent correction of her fabrications was apparently triggered by a meeting with the General Counsel of her law firm. The nature of the violation, coupled with the aggravating factors, made disbarment appropriate.
Accordingly, Smith was disbarred.
COMMENTARY: It was impossible, and unnecessary, for the Court of Appeals to determine whether a truthful description by Smith of her past practice to the Admissions Committee would have resulted in a sanction against her by District of Columbia authorities and later action by the Court of Appeals and, if so, whether mitigating circumstances would have moderated that sanction.
The obstruction of a bar inquiry through the submission of fabricated evidence by an experienced member of the bar is an instance of dishonesty that incorporates a number of factors that have been deemed aggravating. See American Bar Association Standards for Imposing Lawyer Sanctions, §9.22(b), (e), (f), (i).
PRACTICE TIPS: Factors that have been deemed “aggravating” by the American Bar Association include dishonest or selfish motive, bad faith obstruction of disciplinary inquiry, submission of false evidence, and substantial experience in the practice of law.