Facts
In 2016, two men attempted to rob the Mapco service station in Corinth, Mississippi. When the clerk pushed the panic button, she was shot and killed. Video surveillance led to one suspect who told police Micah Bostic was the other person involved.
Bostic was arrested and Mirandized. He said “I am taking my mother’s advice…she told me to request an attorney.” Officers then told him he was a grown man so it’s up to him. Bostic said again that he wanted to take his mother’s advice. Officers then said “so you’re saying you want an attorney.” Bostic said “yes sir.” Officers then continued to talk to Bostic for 52 minutes. During the interrogation, Bostic continuously pleaded and maintained his innocence.
He was convicted of capital murder and sentenced to life. On appeal, Bostic argued his statement should have been suppressed. MCOA agreed but did not overturn the conviction because it was harmless error in light of the other testimony presented at trial against him.
Analysis
If the subject invokes the right to remain silent, then the questioning must stop; and if the subject requests counsel, the questioning must cease until an attorney is present. An individual must specifically invoke the right to counsel. In situations where the officer believes the accused made an ambiguous statement suggesting a request for counsel, the interrogation may only continue on the narrow road to ascertain the meaning of the ambiguous statement.
In Downey, MSC found Downey invoked her right to counsel by stating that she had an attorney and “could use him.” Only some kind of positive statement or other action that informs a reasonable person of the defendant’s desire to deal with the police only through counsel is required to assert the right.
When Bostic stated that he wanted to take his mother’s advice, he invoked his right to counsel. The officers were required to cease the interrogation. The trial court noted that officers weren’t specifically questioning Bostic but rather continued to converse with him.
This court has held that an interrogation can exist even though an officer does not explicitly question one about the contents of the file or facts of the case. The term interrogation has not been limited to encompass only express questioning by the police.
In Culp, MSC applied a broad interpretation to the term interrogation to include not only questioning, but rather questioning and its functional equivalent. The United States Supreme Court in Rhode Island v. Innis, 446 U.S. 291 (1980), defined “functional equivalent” to mean “words or actions . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.”
Here, the officers continued to question Bostic in a direct effort to get him to retract his invocation of his right to an attorney. The officers refused to accept Bostic’s response that he wanted an attorney. Saying, “You’re a grown man, so it’s up to you. It’s your decision to make” was the functional equivalent of interrogation because the officer should have known that that was reasonably likely to elicit an incriminating response.
Although the officer asked Bostic if he wanted an attorney and he responded “yes sir”, the interrogation still did not cease. The detective continued to try to get Bostic to talk when he stated, “Micah I want you to understand you know everyone.” The officers made no indication that they honored Bostic’s request.
Once an accused has invoked his right to counsel, any statements given by the defendant in response to further police questioning are admissible only where (1) the defendant initiated further discussions with the police and (2) knowingly and intelligently waived the rights he had invoked. Once the right to an attorney has attached, any statements obtained from the accused during subsequent police initiated custodial questioning regarding the charge at issue are inadmissible.
Bostic neither initiated conversation with the officers nor did he waive his right to an attorney. This was a police initiated questioning. Thus, we find that Bostic’s statements were the product of further interrogation by the officers and should have been suppressed because although he invoked his right to counsel the interrogation did not cease.
Thoughts
A. Some textbook examples of functional equivalent of interrogation:
- Talking to the subject about religion and forgiveness while you aren’t questioning the subject;
- Showing a gory photo of the deceased and talking about how their mother must feel without questioning the subject.
In these examples, you are still “interrogating” the subject. If they are in custody, this needs to be done only with a valid Miranda waiver.
B. Also, this would not have mattered in this case because the court found that Bostic had clearly invoked counsel but as for the analysis about clarifying ambiguous statements:
MSC has since decided Saddler wherein they said that it is still good police practice to ask clarifying questions when the subject makes ambiguous requests to remain silent and/or to obtain an attorney. However, they have said they will now follow U.S. Supreme Court case Davis v. United States, 512 U.S. 452 (1994), which holds that the right to counsel can only be legally asserted by an unambiguous or unequivocal request for counsel.