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Request to remain silent must be clear and unambiguous

Facts

AB confided to her cousin, Whitney Grose, that Jeffrey Kleckner, AB’s cousin, had sexually assaulted her on numerous occasions during the past several years. The Union County Sheriff’s Department was contacted, and it began an investigation. Angie Floyd, a forensic-interview specialist with the Children’s Advocacy Center in Tupelo, Mississippi, interviewed AB on September 9, 2008. Floyd, who was accepted as an expert in child forensic interviewing, testified that AB disclosed abuse and that she did appear to be consistent with that of a child who had been sexually abused.

According to the testimony of Roger Garner, an investigator with the Union County Sheriff’s Department, Kleckner was arrested at his girlfriend’s home in Blue Mountain, Mississippi. Garner testified that Kleckner gave a written statement to the police after waiving his rights. Garner read Kleckner’s statement to the jury at trial:

“During the summer of 2006 after I got laid off from the furniture factory, I had too much time on my hands. [AB] had come up to my shop on County Road 121 and talked about stuff—the cars, school, boys, and her dad’s dogs. The first time I touched her we were in the house playing cards. She is an aggressive and curious girl. I was alone and thinking about stuff and I started to talk to her. I touched her breasts and nipples. I then touched her vagina and I put my finger inside her and rubbed it around. I can’t remember if I moved my hand or if she reached for my penis, but she touched my erect penis and I was aroused. I don’t know if I made her climax or not. I didn’t, I don’t think, but the first time she reached out and touched my penis. I remember at one time in the car that I touched her vagina area inside her thigh, but nothing else happened that time. I don’t think there were any other times. I told her that she should be careful of boys that might take advantage of her and do more to her. I did not want her to hate me. After this stuff happened, I just stay [sic] away from the family. About a month or so ago, I called to ask about the zoo, but she did not answer.” He indicated he called her on the phone and she didn’t answer the phone. “I have seen her recently, but I try not to hang around.”

Chris Aldridge, a Baptist minister and sworn commissioned deputy to serve as chaplain, was present during Kleckner’s arrest and subsequent interview at the Union County Jail. Aldridge testified that he observed Garner give Kleckner his Miranda warnings at his time of arrest. According to Aldridge, Garner also read Kleckner his rights once at the police station, and Kleckner signed the waiver-of-rights form. Aldridge also identified the statement read by Garner as having been made by Kleckner.

Kleckner was convicted of touching a child for lustful purposes and sexual battery and sentenced to life. On appeal, he argued his request for silence was ignored and he was seized without a search warrant. MCOA affirmed.

Analysis

A. Confession

Kleckner contends that Garner continued to question him after he had asserted his right to remain silent. We find no merit to this argument.

In describing his interview with Kleckner, Garner testified that Kleckner told him that he fondled the victim and placed his fingers inside her vagina. Garner testified that he asked Kleckner if he licked the victim. Kleckner replied that he did not think he needed to say anything else but, then again “there are two sides to everything.” Garner testified that he asked Kleckner again, and Kleckner indicated that he did not want to say anything further. Investigator Garner testified that he then stopped the interview.

As evidenced above, Kleckner failed to make an unambiguous, unequivocal assertion of his right to remain silent, and the officer was not compelled to stop the questioning. The officer asked Kleckner about one act the victim said he had committed, and Kleckner said he did not want to answer any more questions. The officer asked the question again and then ended questioning. There was no violation of Kleckner’s right not to give evidence against himself, and, even if there had been, the one allegedly inappropriate question did not yield any evidence. Kleckner had already given the information that incriminated him before he said that he did not want to answer any more questions. This issue is without merit.

B. Seizure

Kleckner argues that his Fourth Amendment rights were violated when he was seized from Carson’s home without a search warrant.

According to testimony presented at trial, the officers armed with an arrest warrant for Kleckner entered by Carson’s consent without objection from Kleckner. Upon entry of the home, the officers witnessed Kleckner asleep on the couch. While Carson testified that after October 2007, Kleckner stayed at her house most of the time, nothing appears in the record showing that Kleckner refused the officer’s entry into the home.

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/CO77308.pdf