NUMBER 13-03-388-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RAUL ADAM MARTINEZ, JR. Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 248th District Court of Harris County, Texas.
OPINION
Before Chief Justice Valdez and Justices Yanez and Castillo
Opinion by Chief Justice Valdez
Appellant, Raul Adam Martinez, Jr., was convicted of capital murder and sentenced to life in prison. Martinez contends the trial court made a constitutional error by denying his motion to suppress a videotaped statement he made to police. The sole point of error on appeal is that Martinez's videotaped statement should not have been admitted into evidence at trial because it was made during an interrogation that began without Miranda warnings, even though Martinez was given the appropriate warnings just prior to making the statement. Appellee, the State, responds that: (1) Martinez has not met the burden of presenting and developing a record to show error requiring reversal; (2) neither a substantive interrogation nor an incriminating statement occurred before Martinez voluntarily waived his constitutional rights by making the statement; and (3) Martinez was not harmed by the admission of his videotaped statement. We affirm the trial court's judgment.
I. BACKGROUND
A. Factual Background
Martinez was arrested by Officer Macario Sosa for the capital murder of Manuel Arriaga-Molina. During the arrest, Sosa handcuffed Martinez, told him he was under arrest for capital murder, placed him in a police car, and drove him to the police station. No Miranda warnings were given at the scene of the arrest or at the police station. Upon arriving at the police station, Sosa and his partner, Sergeant Hernandez, asked Martinez if he wanted to speak with them about the incident. The three briefly discussed the incident, but Martinez denied knowing anything about it.
Shortly after his brief discussion with the officers, Martinez was turned over to another officer, who administered a polygraph test. It took the polygrapher three to four hours to create the test questions from the case file and administer the test. The record does not contain the questions asked during the test or a report of the test. Martinez was then returned to Officers Sosa and Hernandez and allowed to use the bathroom, telephone his father, and eat. At this point, Officers Sosa and Hernandez confronted Martinez with the fact that areas of deception had been detected during the polygraph test. They then took Martinez from the police station to a municipal court, where he was given his statutory and constitutional warnings by a magistrate. From municipal court, Martinez was taken to a different police station and placed in an interrogation room. Finally, Officers Sosa and Hernandez sat down with Martinez, gave him Miranda warnings, and questioned him; the interrogation was videotaped.
B. Procedural Background
A suppression hearing to determine the admissibility of Martinez's videotaped statement was held shortly before trial; Officer Sosa was the only witness. Officer Sosa described the aforementioned arrest and interrogation process. Martinez's defense counsel highlighted the fact that during his recorded statement, Martinez made two references to statements he was told by another officer. The statements were made when Officers Sosa and Hernandez conveyed the gravity of the situation by reminding Martinez that three people were shot and one was killed. Martinez casually pointed to the wall and responded, "[t]hat's what the dude told me over there." Officer Sosa testified that Martinez was referring to the polygraph examiner. A record was not created of the questions, statements, or results of the polygraph examination. The trial court denied Martinez's motion to suppress his videotaped statement.
II. DISCUSSION
Martinez contends that his videotaped confession was the product of a type of "question-first" interrogation made unconstitutional by the U.S. Supreme Court. (1) Martinez argues that the unwarned and warned portions of the interviews were done as part of a tactically continuous process aimed at getting him to make admissions before he was aware of his legal rights. He asks us to apply the Fifth Amendment analysis used in Missouri v. Seibert, 542 U.S. 600 (2004). See U.S. Const. amend V.
A. The Seibert Case
The Seibert case involved murder and questionable police conduct. Patrice Seibert's 12-year-old son, Jonathan, had cerebral palsy, and when he died in his sleep, she feared charges of neglect because of bedsores on his body. She allowed her other son and a friend to "torch" her mobile home while Jonathan's body and Donald, a mentally ill teenager staying with Seibert, were inside. Donald was left inside the home to avoid any appearance that Jonathan had been unattended. When the local police arrested Seibert, they intentionally questioned her without Miranda warnings for 30 to 40 minutes. During the questioning, an officer squeezed Seibert's arm and repeated, "Donald was also to die in his sleep." After Seibert admitted she knew Donald was meant to die in the fire, she was given a 20-minute coffee and cigarette break. She was then returned to the same room by the same officer, given Miranda warnings, and waived those warnings. The questioning during this session began, "Ok, 'trice, we've been talking for a little while about what happened . . .."
Seibert was charged with first-degree murder for her role in Donald's death. At a supression hearing before trial, she sought to exclude both her pre-warning and post-warning statements. The trial court excluded only her pre-warning statements and she was convicted of second-degree murder. On appeal, the U.S. Supreme Court, in a plurality opinion, affirmed.
Justice Souter's opinion, which was joined by three other Justices, held that "[t]he threshold issue when interrogators question first and warn later is . . . whether it would be reasonable to find that in these circumstances the warnings could function 'effectively' as Miranda requires." Seibert, 542 U.S. at 611-12. Any Miranda warning "inserted in the midst of [a] coordinated and continuing interrogation" is problematic; and unless "a reasonable person in the suspect's shoes could have seen the station house questioning as a new and distinct experience, [and thus] the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission," the plurality would find the post-warning statements inadmissible. Id. at 614-16. The plurality set forth five "relevant facts that bear on whether Miranda warnings delivered midstream could be effective:"
[1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second, [4] the continuity of police personnel, and [5] the degree to which the interrogator's questions treated the second round as continuous with the first.
Id. at 615. These factors, all of which concern the relationship between the first and second interrogations, are intended to aid courts in determining whether an initial, unwarned interrogation operates to "thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted." Id. at 617.
Justice Kennedy concurred in the judgment, but on "narrower" grounds. Id. at 622 (Kennedy, J., concurring in judgment only). Like the plurality, Justice Kennedy wrote that "[t]he interrogation technique used in this case is designed to circumvent Miranda v. Arizona," and "statements obtained through the use of this technique are inadmissible." Id. at 618. For Justice Kennedy, however, the plurality's test, which "envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations, . . . cuts too broadly." Id. at 621-22. Instead, in Justice Kennedy's view, unless the police used "the two-step interrogation technique . . . in a calculated way to undermine the Miranda warning, then "[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad." (2) Id. at 622. In those "infrequent case[s]" where the interrogating officer deliberately uses the two-step strategy, "postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." Id. If the two-step method was used deliberately, the interrogating officer must take "curative measures . . . designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning," such as "a substantial break in time and circumstances between the prewarning statement and the Miranda warning," or "an additional warning that explains the likely inadmissibility of the prewarning custodial statement." Id.
Justice O'Connor authored the four-member dissent, which concluded that "the plurality gives insufficient deference to Elstad," and stated that the Court should have "analyze[d] the two-step interrogation procedure under the voluntariness standards central to the Fifth Amendment and reiterated in Elstad." Id. at 628-29 (O'Connor, J., dissenting).
B. The Holding Under Seibert
Under Miranda, police officers are required to inform individuals about to undergo custodial interrogation that the state intends to use their statements to convict them, that they have the right to remain silent, and that they have the right to have counsel present during questioning. Miranda, 384 U.S. at 468-70. An individual may effectively waive these rights "provided the waiver is made voluntarily, knowingly, and intelligently." Id. at 444, 475. In order for the waiver to be made voluntarily, it "must have been made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986).
Our reading of Seibert is that a confession is voluntarily made if it is made after proper and functional Miranda warnings. See Seibert, 542 U.S. at 612 (plurality opinion). Seibert deals with the admissibility of statements made after the police give "midstream" warnings, that is, when police begin a custodial interrogation without advising the suspect of his Miranda rights, obtain incriminating statements, and then continue questioning after administering warnings in order to re-elicit the incriminating statements. Id. The plurality opinion holds that "when interrogators question first and warn later," the threshold issue is "whether it would be reasonable to find that in these circumstances the warnings could function 'effectively' as Miranda requires." Id. at 611-12.
The dissent aptly points out that the holding of a plurality decision is usually found in the opinion that concurs in the judgment on the narrowest grounds. Marks v. United States, 430 U.S. 188, 193 (1977) (holding that ordinarily, where "a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgements on the narrowest grounds." (internal quotation marks omitted)); see also Thornton v. State, 145 S.W.3d 228, 234 n.10 (Tex. Crim. App. 2004).
However, the dissent fails to recognize the practical limitations of Marks. The Marks rule produces a determinate holding only when one opinion is a logical subset of other, broader opinions. United States v. Eckford, 910 F.2d 216, 219 n.8 (5th Cir. 1990) ("The Marks 'narrowest grounds' interpretation of plurality decisions comprehends a least common denominator upon which all of the justices of the majority can agree."); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). When the plurality and concurring opinions take distinct approaches, and there is no narrowest opinion representing the common denominator of the Court's reasoning, Marks becomes problematic. United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006). Marks does not apply when the various opinions supporting the Court's decision are mutually exclusive. See Homeward Bound, Inc. v. Hissom Mem'l Ctr., 963 F.2d 1352, 1359 (10th Cir. 1992) (citing King, 950 F.2d at 782).
We find the holding in Seibert to be in the plurality opinion for two reasons. First, there is no internal rule tethering the plurality and concurrence in judgment. See Ken Kimura, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 Cornell L. Rev. 1593, 1599-1600 (1992). (3) The plurality's rationale focuses on the defendant's comprehension of his rights during the interrogation process. Seibert, 542 U.S. at 613-14 ([W]hen Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and 'depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.'") (quoting Moran v. Burbine, 475 U.S. 412, 424 (1986)). The plurality's reasoning fits within the framework surrounding Miranda. See Duckworth v. Eagan, 492 U.S. 195, 203 (1989); California v. Prysock, 453 U.S. 355, 359 (1981). By contrast, Justice Kennedy's concurrence focuses on the state-of-mind of the interrogating officers, drawing a distinctions between accidental and intentional actions. It urges the application of Elstad unless a deliberate two-step strategy is used; if the deliberate two-step strategy is used, curative measures must be employed before the postwarning statement is made in order for that statement to be admissible. Seibert, 542 U.S. at 621 (Kennedy, J., concurring in judgment only).
Furthermore, not only was Seibert's concurrence the decision of only one (or arguably two) Justice(s), but it was expressly rejected by seven other Justices of the Supreme Court. (4) The plurality argued that, "[b]ecause intent of the officer will rarely be as candidly admitted as it was here (even as it is likely to determine the conduct of the interrogation), the focus is on facts apart from the intent that show the question first tactic at work." Id. at 617 n.6. Justice O'Connor's rebuff is even more stinging. Justice O'Connor claimed that Justice Kennedy's rationale creates ambiguity in analyzing two-stage interrogation cases because, "in addition to addressing the standard Miranda and voluntariness questions, courts will be forced to conduct the kind of difficult, state-of-mind inquiry that we normally take pains to avoid." Id. at 627 (O'Connor, J., dissenting).
The underlying rationales of Justice Kennedy's concurrence and the plurality opinion are so divergent that they render Marks's narrowest-grounds-interpretation rule inapplicable. Generally, the narrowest ground merits only persuasive precedential value, Kimura, 77 Cornell L. Rev. at 1617, not mandatory precedential value. Because Justice Kennedy's concurrence is clearly a minority view and does not comport with the jurisprudence surrounding Miranda, we find the plurality opinion is more persuasive and therefore governs. (5)
C. Response to the Dissent
In applying Justice Kennedy's holding, the dissent summarily finds deliberate two-stage intent in either a failure to make a record of pre-Miranda statements or the very act of engaging in "two-stage" interrogation. The dissent fails to perform an Elstad analysis of whether the officer's omission of Miranda warnings was "a simple failure to administer the warning, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will." Elstad, 470 U.S. at 318, n.5. The dissent's inability to successfully conduct an Elstad inquiry exposes the practical problems of applying the rule dictated by Justice Kenney's concurrence in Seibert. As noted in Justice O'Connor's dissent, evidentiary difficulties have led the Supreme Court to reject an intent-based test in several criminal procedures. Seibert, 542 U.S. 626. (citing New York v. Quarles, 467 U.S. 649 (1984). Unlike Seibert, Officer Sosa did not own up to a deliberate two-stage interrogation. The silent record in the instant case does not reveal "any actual coercion or other circumstances calculated to undermine" Martinez's ability to exercise his free will.
The dissent cites Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003), as authority condemning two-stage interrogation. Jones was published a year before Seibert was decided, dealt with facts equally as disturbing as Seibert, and is distinguishable from Martinez's case. In Jones, appellant orally admitted his involvement in two murders. Id. at 771-72. As appellant confessed, an officer wrote down "verbatim" what appellant said on a statement form. Id. When appellant finished, the officer sat down next to him and went over the legal rights that appeared at the top of the written form. Id. Then the officer and appellant read the statement together, appellant corrected mistakes, initialed revisions, and signed the statement at the bottom. Id.
The dissent's reliance on Jones is misplaced. The facts in Jones were so egregious that the Court of Criminal Appeals rested its opinion on Miranda. It refused to apply Elstad - the only other doctrinal tool available at the time - because "[t]o apply Elstad here and declare the [appellant's] statement admissible by virtue of the late admonishment of the required warnings would undermine the spirit and intent of Miranda." Id. at 775. Seibert is now the law of the land and provides an appropriate analysis given the facts of the instant case. Martinez's rights were not trampled like those of the appellant in Jones. The instant case shows a meaningful waiver of Miranda because the questioning was not continuous. To the contrary, the officers' questions were punctuated by a trip to a municipal court, where Martinez was given Miranda warnings by a magistrate.
D. Standard of Review
Motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In reviewing the trial court's ruling on a motion to suppress, we afford deference to the trial court's determination of the historical facts and rulings on mixed questions of law and fact if the resolution of those questions turns upon the credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997); Morfin v. State, 34 S.W.3d 664, 666 (Tex. App.-San Antonio 2000, no pet.). Appellate courts are not at liberty to disturb the trial court's findings of fact as long as they are supported by the record. However, we decide de novo whether the trial court erred in misapplying the law to the facts. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 87-88; Morfin, 34 S.W.3d at 666.
E. Analysis
The instant case presents a Seibert problem because Martinez made pre-Miranda statements to police officers and a polygraph examiner, was then given separate Miranda warnings by a magistrate and the interrogating officers, and finally appeared in a videotaped interrogation that was admitted into evidence at trial.
At the outset, we note that there is no record of Martinez's pre-warning statements made to Officers Sosa and Hernandez or the polygraph examiner. The first two factors that the Seibert plurality found relevant in determining whether Miranda warnings delivered midstream are effective are the completeness and detail of the questions and answers in the first round of interrogation and the overlapping content of the two statements. The dissent is troubled by Martinez's two references to the polygrapher telling him that three people were shot during the incident. Unlike Seibert, Martinez was repeating the polygrapher's general statements regarding the crime, not his own unwarned statements. Therefore, the first two Seibert factors are not applicable in Martinez's case.
In this case, the last three Seibert factors point toward a meaningful waiver of Martinez's right to remain silent. The timing, setting, and general circumstances surrounding the second interrogation were formal enough to apprise Martinez of the gravity of the situation. Shortly after the polygraph test was administered, Martinez was given Miranda warnings by a magistrate and then taken to a different police station for further interrogation. Before the post-warning interrogation, Martinez was apprised of his rights by Officer Sosa. Having been given Miranda warnings by a magistrate and Officer Sosa, Martinez made the videotaped statement. While Officers Sosa and Hernandez interacted with Martinez before and after the Miranda warnings, their questions did not rely on statements made prior to the warnings.
III. CONCLUSION
We conclude that admission of the videotaped statement did not constitute constitutional error because it was made after a proper and functional Miranda warning. Martinez's sole point of error is overruled. The judgment of the trial court is affirmed.
ROGELIO VALDEZ
Chief Justice
Dissenting opinion by Justice Linda Reyna Yañez.
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this the 9th day of November, 2006.
1. 2. 3. Ascertaining the appropriate legal rule requires a close analysis of the plurality opinion and Justice
Kennedy's concurring opinion. For,
[a]lthough the narrower legal rule may share certain aspects of the broader legal rule, it does not necessarily follow that the Justices supporting the broader rule accept the validity of the narrower rule. Indeed, the fact that the decision creates a split concurrence suggests that some Justices do not accept the validity of the narrower rule. To construe the narrower legal rule as the majority rule is misguided. It is true that the coalition of Justices supporting the broader rule would necessarily reach the same outcome under the narrower rule. This seems to suggest that this coalition implicitly accepts the narrower rule. However, in future decisions, the coalition supporting the broader rule will "implicitly" agree with the narrower rule only on those occasions when the same particular outcome is achieved. When the alternative outcome results, no basis exists for believing that the Justices supporting the broader rule will still accept the principles underlying the narrower rule. This one-way flow of legitimacy disallows imputing a majority agreement on the narrower rule.
Ken Kimura, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 Cornell L. Rev., 1593, 1604
(1992).
4. 5.