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Home / Opinion Digests / Criminal Practice / Criminal Practice – Constitutional – Right to Counsel – Right against Self-Incrimination – Miranda — Suppression – Conversation Initiation – Intelligent Waiver

Criminal Practice – Constitutional – Right to Counsel – Right against Self-Incrimination – Miranda — Suppression – Conversation Initiation – Intelligent Waiver

State v. Quick (Lawyers Weekly No. 13-07-0372, 12 pp.) (Robert N. Hunter Jr., J.) (Sanford L. Steelman Jr., J., concurring) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) N.C. App.

Holding: After defendant reiterated that he wanted to talk to his lawyer, a detective told defendant that more warrants would be served on him, that an attorney would not help with the warrants, and that the warrants would be served regardless of whether the attorney was there. When defendant then said, “We need to talk,” defendant was not initiating further communication with the police within the meaning of State v. Dix, 194 N.C. App. 151, 669 S.E.2d 25 (2008).

We affirm the trial court’s suppression of defendant’s subsequent statements.

“Interrogation” under Miranda encompasses not only … express questioning, but also … 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.

The police knew or should have known that telling defendant that an attorney could not help him with the warrants would be reasonably likely to elicit an incriminating response. It was only after this statement by police that defendant agreed to talk. Defendant did not initiate the communication.

This case is distinguishable from State v. Allen, 200 N.C. App. 709, 684 S.E.2d 526 (2009), in that the detective’s statements in the present case go beyond those normally attendant to arrest and custody.

This case is distinguishable from State v. Thomas, 310 N.C. App. 369, 312 S.E.2d 458 (1984), in that defendant’s statement was in direct response to the detective’s comments that an attorney would not be able to help him. There was no gap in time between the comments and defendant’s response.

Even if defendant had initiated communication with police, his waiver was not knowing and intelligent. Defendant was 18 years old and had limited experience with the criminal justice system. Only seven minutes elapsed between defendant’s initial assertion of his right to counsel and his supposed waiver of that right, during which time defendant tried to contact his attorney and reasserted his right to counsel at least once. A waiver form was filled out at 12:48 p.m. and witnessed at 12:59 p.m. There is no evidence as to what transpired in the interrogation room between 12:39 p.m. and 12:59 p.m. The timeline, along with the statements by police that an attorney would not be able to help with the warrants, suggest that any waiver by defendant was not knowing and intelligent.

Affirmed.

Concurrence

(Steelman, J.) I concur in the result in that the state fails to challenge the trial court’s findings of fact, and those facts support the trial court’s conclusions of law.

 


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