Morris v. United States

TERRY, Associate Judge,

concurring in part and dissenting in part:

I agree with my colleagues that appellant’s initial oral statement that he punched Rhonda in the stomach was properly admitted into evidence, and that appellant’s reliance on United States v. Gayden, 492 A.2d 868 (D.C.1985), is unavailing. However, I am convinced that the videotaped confession, which followed a few minutes later, was obtained in violation of appellant’s rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Because its admission into evidence was not harmless error, I would reverse appellant’s conviction and remand the case for a new trial.

I. THE ORAL STATEMENT

The Supreme Court has held that the statement of a defendant obtained through the exploitation of an unlawful seizure1 may *1223not be used in evidence against that defendant. Dunaway v. New York, 442 U.S. 200, 216-219, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In this case, therefore, the first question the court must answer is whether appellant was seized in violation of the Fourth Amendment at the time of his admission to Detective Jefferson, in Sergeant Randall’s presence, that he had “punched [Rhonda] in the stomach.” See Hawkins, supra note 1, 663 A.2d at 1225 (whether defendant was “seized” is a question of law). Appellant does not argue that he was seized when he was first brought to the police station by Detective Owens and questioned by Sergeant Randall. See Bridges v. United States, 392 A.2d 1053, 1056 (D.C.1978) (person who “freely elects to enter into or continue an encounter with police” by coming to police station for interview is not under arrest), cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979). Rather, he maintains that his voluntary presence became a seizure when Detective Jefferson began rejecting his responses to questions. He claims that Detective Jefferson “bore down” on him and that the “tone of interrogation turned sharply accusatory and confrontational.” Therefore, since the police indisputably lacked probable cause at this point in the encounter,2 appellant asserts that he was subjected to an unlawful seizure.

In support of his argument, appellant relies primarily on United States v. Gayden, supra, a murder case in which the victim, shortly before he died, identified his murderer as “Poochie .” Several days later the police learned that the victim knew Mark Gayden, who went by the nickname “Poochie.” When the police went to Gayden’s home, he readily agreed to accompany them to the station to answer some questions. Over the course of five hours, a detective questioned Gayden twice and received inconsistent statements from him. Because of these inconsistencies, the detective doubted Gayden’s veracity and

decided to confront him a third time, but this time with a “fresh face.” The second interrogator told Gayden that he knew Gayden was lying because the victim had identified him as the shooter. To this statement Gayden responded, “Yes, I shot him.” The officer then stopped the interrogation and read him his Miranda rights3 for the first time. On appeal, we affirmed a trial court order suppressing that statement, upholding the court’s finding that although Gayden had not been seized when he made his first two inconsistent statements, the “circumstances existing” prior to his third statement “indicated the police were convinced that Gayden had killed [the victim], and that Gayden was not free to leave ....” 492 A.2d at 873.

Gayden is readily distinguishable from the instant case. In Gayden, as a result of inconsistencies between the defendant’s first and second statements, the officers “decided to ‘stall’ ” in order to keep the defendant at the police station. Id. at 871. Moreover, after concluding that the defendant was lying, an officer who had not previously spoken to the defendant “confronted” him and told him that the victim had identified him as the assailant. By that time the defendant had been in the same room at the police station for more than five hours and had been interviewed twice.

In the case at bar, by contrast, appellant had been at the police station for a little less than three hours and had been interviewed only by Randall and Jefferson, together, before he volunteered his incriminating remark. Moreover, although Jefferson apparently became skeptical of appellant’s story, he did nothing more than to tell appellant that he did not believe certain events had happened as appellant had related them. Compare United States v. Allen, supra note 1, 436 A.2d at 1309 (holding that a seizure occurred when defendant was told he had to go with police to homicide office, was under constant *1224guard, was subjected to tests for gunpowder residue, and was questioned for more than four hours). Most importantly, nothing in the record here suggests that the police were “stalling] in order to gather information that would provide probable cause to arrest appellant.” Johnson v. United States, 616 A.2d 1216, 1230 (D.C.1992), cert. denied, 507 U.S. 996, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993); compare Gayden, 492 A.2d at 871 (police admitted that bringing in a new officer was part of a deliberate interrogation “technique” designed to elicit an admission).

Appellant makes much of Sergeant Randall’s testimony that if appellant, before he made his statement, had been “adamant” in asking to leave, she “probably would have let him go.” We have held, however, that the testimony of an officer as to whether he or she would have actually let the defendant go, had he asked to go, is not conclusive on the issue of seizure. See Patton v. United States, 633 A.2d 800, 815 (D.C.1993) (finding no unlawful seizure despite officer’s testimony that he would not have let defendant leave if he had desired to do so); cf. Giles, 400 A.2d at 1054 (evidence showed that defendant was free to go at all times; his “subjective belief as to whether he was under arrest [was not] determinative”).4 A defendant’s failure to ask to leave, as in this case, is certainly a relevant factor, but it is hot dis-positive. See Patton, 633 A.2d at 815; Allen, 436 A.2d at 1309.

Although appellant’s legal posture may have worsened as the day progressed, see Giles, 400 A.2d at 1055, one cannot conclude on the present record that he was seized and in custody at the time he made his admission. There was thus no Fourth Amendment violation and no reason to suppress appellant’s oral statement under Dunaway v. New York and its progeny.

II. THE VIDEOTAPED CONFESSION

The videotaped confession is another matter entirely; it implicates not the Fourth Amendment but the Fifth. In arguing for reversal, appellant invokes the rule established in Miranda v. Arizona, supra note 3, that if an accused, during a custodial interrogation, “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning.” 384 U.S. at 444-445, 86 S.Ct. 1602. I believe that this rule was violated and that the videotaped confession should have been suppressed.

A. Relevant Facts

Immediately after appellant admitted that he had punched Rhonda in the stomach, Sergeant Randall placed him under arrest and read him his rights from a PD-47 “Advice of Rights” card. Appellant replied that he understood his rights, that he wanted to remain silent, and that he would not answer any questions without a lawyer. He then signed the PD-47 card, and Sergeant Randall, Detective Jefferson, and another officer, who had been observing the interview for a few minutes, left the room.

Soon thereafter Sergeant Randall told Detective Whalen what had happened, and Whalen went into the interview room to obtain from appellant certain biographical information which he needed for processing. Whalen testified that he did not ask appellant any questions about the ease because he knew that appellant “had invoked his rights.” Appellant, however, asked Whalen “if it would be possible to speak to Sergeant Randall.” Whalen responded, “Yes,” and after obtaining the processing information he was seeking, told Randall that appellant wished to speak to her.

When Sergeant Randall returned to the interview room, appellant asked her if she would “stay in there and talk to him.” Randall said she would, but they could not talk about his case because “he had indicated he didn’t want to answer any further questions and ... he didn’t want to answer any further questions without a lawyer.” To this appellant replied, “Okay.” Randall testified that she did not construe appellant’s request to talk as an attempt to renew discussions *1225about the case; rather, she believed he “just wanted some company” because he was “lonely.”

Appellant proceeded to tell Sergeant Randall and Detective Jefferson, who came into the room shortly after Randall,5 about his upbringing and his experience in the Job Corps. He also began to tell them that he had been “in some trouble one time about riding in a stolen car,” but Randall interjected that she “really didn’t want to hear anything about that.” Detective Jefferson .testified that, after appellant made a few comments about living with his grandfather in North Carolina, he suspected that the grandfather had molested him and that this might explain why appellant had hurt Rhonda. In order to see “what kind of reaction” he would get, Jefferson accused appellant of having sexual contact with Rhonda and giving her gonorrhea.6 Appellant denied these allegations. Then, according to Sergeant Randall’s testimony, Jefferson asked appellant if he had ever been to jail, asked him how much he weighed, and said that appellant appeared to be “a little light in the pants.”

Jefferson testified that appellant continued discussing his life, but when appellant brought up his relationship with Rhonda’s family, Jefferson and Randall both told him that they could not talk about that. Randall testified that appellant then said, “I might as well go on and tell you what happened to Rhonda.”7 Randall told him that he would first have to sign another PD-47 card waiving his rights, and then he could give either a written or a videotaped statement. Appellant agreed to make a videotaped statement.

On the videotape, Detective Jefferson re-advised appellant of his rights, and appellant signed another PD-47 card. He then stated that Rhonda had “used the bathroom on herself,” and that he “put her in the tub with the hot water and it pulled the skin off her feet.” He admitted grabbing and squeezing Rhonda’s neck and then hitting her in the stomach. Appellant said he was sorry and explained that he was “stressed out” at the time of the incident. He denied having any sexual contact with Rhonda.

The court denied appellant’s motion to suppress the two statements. It held, first of all, that before appellant admitted punching Rhonda in the stomach, the police did not have probable cause to arrest him. The court also held, however, that even though he might have been “a focus of the investigation,” he was not in custody for Miranda purposes until after he admitted punching Rhonda. At that point he was arrested and advised of his rights, which he fully understood;. indeed, he invoked his right to remain silent and his right to counsel. The court found that once he did so, Sergeant Randall and the other officers ended their interrogation.

Then, as Detective Whalen was obtaining booking information from him, appellant asked to speak again with Sergeant Randall. At that point, the court said, it would “have to weigh all reasonable inferences against the government because it is the government’s burden ... of showing that there was a waiver of the Miranda rights.” During the ensuing interview, the court concluded, Detective Jefferson made some statements to appellant that “have to be construed as interrogation.” 8

*1226At the trial which followed, appellant testified in his own defense. He recounted Valerie’s comings and goings on the night of February 3. He also said that the children’s behavior had been unruly that evening and that the apartment itself was dirty and unheated. Appellant admitted that he “got angry” when Rhonda defecated on herself and that he “snatched her by the arm [and] took her toward the bathroom.” After removing her clothes, appellant “stood her up in the bathtub, turned on the hot water, just turned it on, and peeped out in the hallway to see what the other kids were doing. That’s when Rhonda screamed.” Appellant continued:

She was at the back of the tub, with the hot water on her foot. And I went in there, grabbed her by the neck, picked her up out of the tub, dropped her on the floor. Then she was crying and screaming, so I pushed my hand over her mouth real hard, to stop her from screaming. That’s when I punched her in the stomach ... punched her a few times, punched her hard, picked her up by her neck, pushed her back ... toward the hallway.

Appellant denied burning Rhonda with a cigarette and said that the only injury he noticed on Rhonda’s body before putting her to bed was a burn on her foot from the hot water. He said that when he heard Rhonda choking, he tried to resuscitate her because he did not want her to die.

B. The Edwards Violation

In Edwards v. Arizona, supra, the Supreme Court found it “inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” 451 U.S. at 485, 101 S.Ct. 1880. Consequently, the Court held that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484, 101 S.Ct. 1880 (footnote omitted). The Court further held that an accused, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-485, 101 S.Ct. 1880.

Edwards “established [a] prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990) (citation omitted); see McIntyre v. United States, 634 A.2d 940, 944 (D.C.1993). Under Edwards there is a two-part test for admissibility of a suspect’s responses to further questioning after the suspect’s invocation of his Miranda rights has caused prior questioning to be stopped or suspended. “The inquiries are separate, and clarity of application is not gained by melding them together.” Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality opinion). First, the government must demonstrate that the suspect initiated further discussions with the police. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Inquiries or statements related to “routine incidents of the custodial relationship” will not suffice to show re-initiation; rather, the suspect must have manifested “a desire ... to open up a more generalized discussion relating directly or indirectly to the investigation.” Oregon v. Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2830; see McIntyre, 634 A.2d at 944. Second, the government must establish that the suspect waived the rights he previously invoked, Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. 490, and that the purported waiver was knowing and intelligent in light of all the circumstances. Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880; see also Arizona v. Roberson, 486 U.S. 675, 680, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

In this case the trial court held, and I fully agree, that appellant was subjected to interrogation9 when Detective Jefferson accused *1227him of sexually molesting Rhonda. In Rhode Island v. Innis, 446 U.S. 291, 299, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court held that “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. 1682 (footnotes omitted). At the suppression hearing, Detective Jefferson made no secret of his purpose. He openly admitted that he accused appellant of sexually molesting Rhonda to see “what kind of reaction I [would] get.” See United States v. Alexander, 428 A.2d 42, 51 (D.C.1981) (detective admitted making accusatory statements to suspect as a “technique” to elicit an incriminating response). We must therefore determine whether appellant had already re-initiated discussions about the case and waived his Fifth Amendment rights at this point in the custodial relationship.10 See Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. 490; Oregon v. Bradshaw, 462 U.S. at 1045-1046, 103 S.Ct. 2830. It is on this issue that I part company with my colleagues in the majority.

The government argues that appellant re-initiated discussions with the police when he expressed a desire to speak with Sergeant Randall even after she had advised him that she could not talk to him about the case. This argument, in my opinion, is factually and legally flawed. Factually, appellant’s response of “Okay” to Sergeant Randall’s warning cannot be deemed anything more than his assent to what Randall had just said, namely, that they could not discuss the investigation; it was not an invitation to explore what had happened between him and Rhonda.11 Legally, this court has- held that “[w]here the officer understands that the suspect has asserted his [Fifth Amendment rights], the fact that someone else could have believed otherwise, or been confused, is irrelevant.” Stewart v. United States, supra note 9, 668 A.2d at 864. Sergeant Randall testified that she understood appellant did not want to talk about the case. She even interrupted and stopped him several times when he began to discuss anything other than general information. Moreover, when Sergeant Randall invited Detective Jefferson to rejoin her in the interview room, she simply told him that appellant wanted “to tell us about his life.” There is no evidence to suggest that Randall believed appellant was about to waive his previously invoked Miranda rights and resume the conversation about the events that had led to his arrest. It was plainly not appellant (or Sergeant Randall) who re-initiated discussions about the case, but Detective Jefferson, contrary to the teaching of Edwards. I would hold that Detective Jefferson violated appellant’s rights under Edwards when he began making statements to appellant which, as the trial court found, “have to be construed as interrogation.”

The government relies on Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and United States v. Mitchell, 293 U.S.App.D.C. 24, 951 F.2d 1291 (1991), cert. denied, 504 U.S. 924, 112 S.Ct. 1976, 118 L.Ed.2d 576 (1992), for the proposition that an officer’s subjective assessment of whether an accused has re-initiated discussions is irrelevant. The issue presented in both of those cases, however, was whether the defendant had been seized within the meaning of the Fourth Amendment, resolution of which required the court to determine “whether ... a ‘reasonable man’ innocent of any crime would have thought he was not free to leave.” United States v. Gayden, *1228supra, 492 A.2d at 872 (citations omitted). The focus of that inquiry is necessarily on the perspective of the defendant, not the police; the officer’s state of mind is irrelevant in a Fourth Amendment analysis. Whren, 517 U.S. at 813, 116 S.Ct. 1769; Mitchell, 293 U.S.App.D.C. at 28, 951 F.2d at 1295; see Gayden, 492 A.2d at 872; Giles, 400 A.2d at 1053. Contrarily, in the context of the Fifth Amendment, the officer’s subjective assessment is relevant insofar as the officer understands that the suspect does not wish to re-initiate any discussion about the case. See Stewart, supra note 9, 668 A.2d at 864. A key purpose of Edwards and its progeny is to provide police officers who conduct interrogations with clear rules about when questioning must cease and cannot be continued. See Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Arizona v. Roberson, supra, 486 U.S. at 682, 108 S.Ct. 2093. To ignore the officer’s understanding of whether the suspect has changed his mind, after exercising his Miranda rights, and decided to re-initiate the discussion would frustrate that purpose. See Davis v. United States, supra, 512 U.S. at 458-459, 114 S.Ct. 2350.12

The government attempts to demonstrate that appellant waived his previously invoked rights by pointing out that he was calm and rational during the videotaped confession. See Everetts v. United States, 627 A.2d 981, 984 (D.C.1993) (in finding voluntary waiver, trial court noted that defendant showed no “apparent effects of being intimidated or threatened or being scared” during videotaped statement), cert. denied, 513 U.S. 848, 115 S.Ct. 144, 130 L.Ed.2d 84 (1994). Appellant’s demeanor during the later videotaped confession, however, is irrelevant to the question of whether he voluntarily waived his rights earlier, before Detective Jefferson’s interrogation. See Edwards, 451 U.S. at 484, 101 S.Ct. 1880 (“a valid waiver of [the right to counsel] cannot be established by showing-only that [the defendant] responded to further police-initiated custodial interrogation”).

Finally, the government argues that even if appellant’s videotaped statement was erroneously admitted into evidence, in violation of Edwards, its admission was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This standard requires us to decide “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) (cited in Chapman, 386 U.S. at 23, 87 S.Ct. 824). Reversal of the conviction is required unless, “once the tainted evidence is excluded from consideration, there remains overwhelming evidence to support the jury’s verdict.” Smith v. United States, 529 A.2d 312, 318 (D.C.1987) (citation omitted). The government contends that appellant’s trial testimony made any error harmless because it covered much of the same ground as the videotaped statement, and because appellant testified to negate the compelling evidence of guilt. See Lewis v. United States, 483 A.2d 1125, 1133-1134 (D.C.1984).

I read the record differently. When a defendant testifies at trial “in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony [is] tainted by the same illegality that rendered the confessions themselves inadmissible.” Harrison v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) (footnote omitted). “Such tainted testimony ‘cannot be considered as independent evidence of guilt for purposes of applying the harmless error rule.’ ” Smith v. United States, 529 A.2d at 318 (citation omitted). In this case it is apparent, at least to me, that appellant’s trial testimony was tainted, within the meaning of Harrison, by the introduction of the videotaped confession. Given the extremely detailed nature of that confession, appellant had little choice but to *1229testify in the hope of lessening its damaging impact. I am not convinced, beyond a reasonable doubt, that appellant would have testified anyhow even if the videotape had never been seen by the jury. On the contrary, his trial testimony appears to have been an attempt to minimize or explain away the details of the videotaped confession, which was far more graphic and inculpatory than his simple statement that he had punched Rhonda in the stomach. See Harrison, 392 U.S. at 223, 88 S.Ct. 2008 (in applying harmless error test, court must look to see why appellant chose to testify).

Thus, excluding from consideration both the videotaped confession (under Edwards) and appellant’s trial testimony (under Ham-son), I would hold that the remaining evidence was not sufficient to assure that the error in admitting the confession was harmless. The videotape was extremely damaging to appellant’s cause. Indeed, the government presented little else; there was no eyewitness testimony and no physical evidence linking appellant to the death of the victim. I would therefore reverse the judgment of conviction and remand the case for a new trial.

. "[W]hen [an] officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen,” that citizen has been seized within the meaning of the Fourth Amendment. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); see Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Hawkins v. United States, 663 A.2d 1221, 1225 (D.C.1995); Brown v. United States, 590 A.2d 1008, 1013 (D.C.1991). Neither the expressed intent of the officer nor the subjective belief of the person detained is con*1223trolling on the issue of whether a seizure has occurred. United States v. Allen, 436 A.2d 1303, 1309 (D.C.1981); Giles v. United States, 400 A.2d 1051, 1054 (D.C.1979). "The test is whether under all of the circumstances a ‘reasonable man’ innocent of any crime would have thought he was not free to leave.” Gayden, supra, 492 A.2d at 872 (citations omitted).

. At the suppression hearing, the government conceded that it did not have probable cause to arrest appellant until he admitted punching Rhonda in the stomach.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. But see Campbell v. United States, 273 A.2d 252, 254 (D.C.1971) ("it is always more difficult, and sometimes impossible, to find voluntariness absent a statement to the suspect informing him of his right to leave”).

. Jefferson testified that he was sleeping at his desk when Randall woke him and told him to come back into the interview room because appellant wanted "to tell us about his life.”

. Jefferson testified:

I asked him if his penis was dripping. He said, “What?” I said, "Does your penis drip, or are you having problems with it?” He said yes. I said, "You’ve got gonorrhea because you gave it to the baby.” He said no. I said, "Didn't you rub yóur penis all over her?” He said no. I said, "Well, why has she got gonorrhea, then?” And he kept saying no to that. The medical examiner’s report said nothing about any injury to Rhonda's genital area and did not mention gonorrhea.

. The parties do not agree on whether appellant’s stated willingness to talk about Rhonda’s death came before or after Jefferson asked him about his sexual health and accused him of molesting Rhonda.

. Nevertheless, the court ruled that there was no Edwards violation, as outlined in the majority opinion.

. See Stewart v. United States, 668 A.2d 857, 863 (D.C.1995) (whether police conduct constitutes “interrogation” is a question of law).

. The trial court found,. and the government does not dispute, that appellant initially invoked his right to counsel. See Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. 490 ("the threshold inquiry [is] whether [the suspect] invoked his right to counsel in the first instance”); see also Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ("The applicability of ... Edwards requires courts to ‘determine whether the accused actually invoked his right to counsel’ ” (citations omitted)).

. Compare Oregon v. Bradshaw, 462 U.S. at 1042, 103 S.Ct. 2830 (re-initiation found when accused asked, “Well, what is going to happen to me now?”); McIntyre v. United States, 634 A.2d at 944 (re-initiation found when accused asked what charges he faced); Rogers v. United States, 483 A.2d 277, 284 (D.C.1984) (murder suspect re-initiated discussions by stating, “I had to sacrifice him”), cert. denied, 469 U.S. 1227, 105 S.Ct. 1223, 84 L.Ed.2d 363 (1985).

. This is not to say, however, that an officer’s subjective assessment that a suspect does wish to re-initiate discussions about the case will be controlling. See Arizona v. Roberson, supra, 486 U.S. at 687, 108 S.Ct. 2093 ("Edwards focuses on the state of mind of the suspect and not of the police”). But see Oregon v. Bradshaw, supra, 462 U.S. at 1046, 103 S.Ct. 2830 (discussing the fact that the interrogating officer "understood” that the suspect wanted to engage in discussion about the investigation).