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Subject made ambiguous statements about remaining silent and officer properly clarified (Saddler has clarified this)

Facts

In 2015, Gerome Moore and two others traveled in a maroon Impala to north Jackson to commit a robbery. They spotted Carolyn Temple exit a store in a white Mercedes and followed her to her home. Moore was the driver and gave a loaded .380 handgun to the others, who got out, took her purse, and shot her in the stomach.

All three then fled in the Impala and the others gave the gun back to Moore. Temple later died and the investigation led to Moore being a person of interest. Moore was Mirandized, acknowledged he understood his rights, and began to pick up a pen to sign.

Before he picked up the pen, Detective Jermaine Magee asked him, “Okay. You wanna tell us, give us a statement?” Moore answered, “No, sir. I ain’t, I ain’t do nothin.” Magee followed up by asking, “Do you want to give us a statement and tell us?” Moore did not verbally answer Magee’s second question. After a pause, he shook his head twice, negatively. Detective Rozerrio Camel then asked him, “Honest, do you want to talk to us?” Moore responded, “No sir. I’ll talk to y’all, but”… Magee then stated, “Okay. Sign it. Sign it right here.” Next, Moore picked up the pen and signed the waiver form.

Moore then confessed, was convicted of capital murder and was sentenced to life. On appeal, Moore argued the statement was not voluntary and he invoked silence. MSC affirmed as to the statement (they ordered him re-sentenced for other reasons).

Analysis

A.  Waiver

Whether a defendant voluntarily, knowingly and intelligently waives his rights is a factual question to be determined by the trial court under the totality of the circumstances. Waiver is considered voluntary if it is the result of a free and deliberate choice rather than intimidation, coercion or deception.

Moore was clearly informed of his right to remain silent. As a subset of this right, Magee informed Moore that anything he said could and would be used against him in a court of law. Moore was also informed of his right to have a lawyer, appointed or otherwise, present during his questioning. Further, Moore was told that he could decide to exercise his rights at any point during the interview. With this last statement to Moore, Magee actually went above and beyond Miranda’s requirements.

Throughout the waiver exchange, Moore repeatedly indicated that he understood his rights and waiver of them. There was no indication that the detectives were rushing Moore at any point during the explanation of Moore’s rights and his waiving them. Further, there was no indication by either detective that Moore would not have been allowed as much time as he needed to review the waiver form before signing it. As to the voluntariness of Moore’s waiver, Moore indicated that he understood the recitation of the waiver and reached for the pen on the table—presumably to waive his rights. Detective Magee then interrupted him with additional questions.

Defense counsel’s claim that Moore’s youth or lack of mental capability rendered his waiver unknowing and unintelligent was unsupported by any evidence at the suppression hearing. Further, no legal authority supports the argument that a minor’s parent must be present before a statement to law enforcement may be admissible at trial.

In Clemons, we said where the crime is such that a circuit court has original jurisdiction, age has no special bearing on his ability to be questioned without a parent and voluntarily waive his rights.

Last, defense counsel raised the issue that Moore’s statement was inadmissible because he informed the detectives that he took various prescription drugs and had smoked spice in the days prior to the interview.

First, at the suppression hearing, Moore offered no evidence of his drug use. Second, the detectives testified that Moore’s demeanor did not indicate that he was under the influence of any substance. Third, the video of Moore’s confession does not indicate that Moore was under the influence of any substance.

B.  Right to Remain Silent

Once warnings have been given, if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. When law enforcement officers are unsure whether a suspect intends to invoke his right to remain silent, it is good police practice for the interviewing officers to stop questioning on any other subject and clarify with the suspect whether or not he intends to invoke his constitutional right.

In Holland v. State, 587 So. 2d  848 (Miss. 1991), we said that in cases involving the invocation of the right to counsel, an interviewing officer may clarify an ambiguous invocation. Today, we extend this same analysis to cases involving the invocation of the right to remain silent.

Moore’s responses to Magee and Camel’s questions did not invoke his right to remain silent. Moore’s responses were ambiguous, and the detectives asked non coercive, clarifying questions, which revealed that Moore did not intend to invoke his right to silence.

Magee first asked Moore whether he wanted to give a statement. Moore responded, “No, sir. I ain’t, I ain’t do nothin.” This statement was ambiguous. While Moore did say, No, sir, he immediately asserted his innocence to the officers.

Following up on the ambiguous response from Moore, Magee asked again, “Do you want to give us a statement and tell us?” Moore paused and shook his head negatively in response. The meaning of the head shake, though, within the context of Moore’s having just proclaimed his innocence to the detectives, was ambiguous and did not preclude the officers from asking an additional clarifying question.

Camel sought to further clarify by asking Moore if he wanted to talk at all. Moore stated, No, sir, followed by I’ll talk to y’all, but . . .  This statement was again ambiguous. In response to Moore’s last indication that he would talk, the detectives directed him to sign the waiver form before proceeding with any additional interrogation. Moore did so without hesitation. The series of questions were asked to ensure that Moore understood his rights. At the end of the exchange, Moore was willing to talk.

Thoughts

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.

 

https://courts.ms.gov/Images/Opinions/CO136910.pdf