In this case the majority opinion has affirmed Mr. Middleton's convictions and
sentences for sexually abusing a five year old girl. I fully embrace the majority's reasoning
and ultimate decision. I write separately only for the purpose of responding to some points
raised in the dissenting opinions.
To begin, Justice Albright takes the position that Mr. Middleton was in custody
during the post-polygraph questioning. The problem with Justice Albright's position is that
no evidence was found in the record to show that Mr. Middleton was in custody. In fact,
Justice Albright's dissenting opinion acknowledges this fact. His dissenting opinion states
the following regarding the evidence of custodial interrogation:
While Appellant may not have been in custody at the onset of the interrogation, the cumulative factors present in this case clearly demonstrate that the circumstances changed during the course of the questioning and Appellant was indeed involved in a custodial interrogation. At that nebulous point when the interrogation became custodial, the police were required not only to again advise Appellant of his constitutional rights but also _ and I believe more importantly _ to respect those rights when Appellant asserted them.
Nowhere in Justice Albright's dissenting opinion does he identify the
“cumulative factors” that demonstrate the “nebulous point” when the interrogation became
custodial. Simply put, you “cannot make a silk purse out of a sow's ear. As we review a
case, we are, for better or worse, confined to the record before us.” Rosa S. v. Superior
Court, 122 Cal. Rptr. 2d 866, 870 (2002). The record in this case was simply devoid of any
evidence to show that Mr. Middleton was in custody. The glaring absence of such evidence
in Justice Albright's dissenting opinion supports the majority's determination that Mr.
Middleton was not in custody during the post-polygraph testing.
Justice Albright also suggests that because Mr. Middleton was a suspect the
protections of Miranda were applicable. This position is inconsistent with well-settled law.
The United States Supreme Court “decisions make clear that the initial determination of
custody depends on the objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person being questioned.”
Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994).
Indeed, “[t]he mere fact that an investigation has focused on a suspect does not trigger the
need for Miranda warnings in noncustodial settings[.]” Minnesota v. Murphy, 465 U.S. 420,
431, 104 S. Ct. 1136, 1144, 79 L. Ed. 2d 409 (1984). See also Oregon v. Mathiason, 429
U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977) (“Any interview of one suspected
of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that
the police officer is part of a law enforcement system which may ultimately cause the suspect
to be charged with a crime. But police officers are not required to administer Miranda
warnings to everyone whom they question. Nor is the requirement of warnings to be
imposed simply because the questioning takes place in the station house, or because the
questioned person is one whom the police suspect.”). In the final analysis, the position taken
by Justice Albright would have this Court apply Miranda protections to both custodial and
noncustodial interrogations. Such a position is inconsistent with Miranda.
Finally, both dissenters take issue with the majority opinion's conclusion that
“[i]f, during the course of noncustodial interrogation of a suspect, the police are made aware
that legal counsel has been retained for the suspect, the police are under no obligation to
inform the suspect that counsel has been retained.” As pointed out by the Ohio Supreme
Court, “[t]he United States Supreme Court has rejected any per se requirement that 'the
police inform a suspect of an attorney's efforts to reach him.'” State v. Williams, 793 N.E.2d
446, 459 (Ohio 2003) (quoting Moran v. Burbine, 475 U.S. 412, 425, 106 S. Ct. 1135, 89
L. Ed. 2d 410 (1986)). See also Ex parte Neelley, 494 So. 2d 697, 699 (Ala. 1986)
(“[N]either petitioner's Fifth nor Sixth Amendment rights were violated by the failure of the
interrogating authorities . . . to inform her of the presence of an attorney who had been sent
at the request of a third party.”); Mitchell v. State, 816 S.W.2d 566, 568 (Ark. 1991) (“During
appellant's interrogation, counsel repeatedly telephoned the sheriff's department attempting
to gain information about appellant's case. The police never told appellant of counsel's
efforts. When counsel failed to contact appellant, counsel instructed the police to cease
questioning of appellant. The police ignored counsel's instructions. . . . [A]ppellant did not
know of counsel's efforts on his behalf. Consequently, we find that the police treatment of
counsel is irrelevant to the validity of appellant's waiver.”); Ajabu v. State, 693 N.E.2d 921,
927 (Ind. 1998) (“[N]either the Fifth Amendment nor the Fourteenth Amendment guarantee
of due process is violated by admission of a confession obtained after an attorney, unknown
to the suspect, unsuccessfully seeks to intervene in an interrogation.”); Lodowski v. State, 513
A.2d 299, 304 (Md. 1986) (“[W]e now hold that the waiver of the rights was not rendered
ineffective under the Fifth Amendment by the failure of the police to inform [defendant] that
counsel had been employed to represent him and were attempting to consult with him.”);
Terrell v. State, 891 S.W.2d 307, 311 (Tex. App. 1995) (“Sgt. Gafford . . . refused to
interrupt the interview of Appellant to advise him that [counsel] was present and available
to talk with him. . . . The record reflects that Appellant independently decided to forgo the
advice of counsel and did not invoke that right even though he had been represented by
[counsel] in the past and allegedly considered him to be the family attorney. The record
supports a finding that Appellant knowingly, voluntarily, and intelligently waived his right
to counsel.”); State v. Bradford, 978 P.2d 534, 539-540 (Wash. App. 1999) (“[U]nder the
holdings in Burbine and Earls, police need not tell an accused of the presence of an attorney
immediately available to counsel them.”). Insofar as the United States Supreme Court and
courts of other jurisdictions do not require the police to inform a suspect that an attorney
represents him/her, the majority opinion reached the correct and legally sound result.
(See footnote 1)
Based upon the foregoing, I repectfully concur.