State v. Blackburn

#24897-a-JKM

2009 SD 37

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

TAD AARON BLACKBURN, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE THOMAS L. TRIMBLE
Judge

* * * *

LAWRENCE E. LONG
Attorney General

ANDREW KNECHT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellant.

PAUL R. WINTER Attorney for defendant
Rapid City, South Dakota and appellee.

* * * *

ARGUED ON MARCH 25, 2009

OPINION FILED 05/13/09
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MEIERHENRY, Justice

[¶1.] Tad Blackburn is charged and awaiting trial for First Degree Murder,

or in the alternative, Second Degree Murder in the death of his girlfriend, Tamara

Magic. Prior to trial, Blackburn moved to suppress statements that he made to

police during a police interrogation. The trial court granted his motion and

suppressed portions of the interrogation. The trial court determined that

Blackburn’s statements to police were inadmissible because Blackburn’s Fifth and

Fourteenth Amendment rights to counsel had been violated. The State sought

permission to appeal the trial court’s suppression order.

Police Questioning of Blackburn

[¶2.] The incident that gave rise to the murder charge against Blackburn

occurred on November 8, 2007, in Rapid City, South Dakota. Late in the evening,

the police and an ambulance responded to an emergency call to the home of Magic.

There they found Magic dead with multiple stab wounds and head trauma. The

police sought Blackburn as a suspect.

[¶3.] Blackburn was stopped by law enforcement driving Magic’s vehicle at

approximately 1:00 a.m. on November 9. The police officer who stopped Blackburn

determined that Blackburn had been drinking and that Blackburn was wanted for

questioning in Magic’s murder. The officer transported Blackburn to the police

station for questioning.

[¶4.] The police interviewed Blackburn twice. The first interview occurred

at approximately 2:00 a.m. on November 9, and a second interview occurred more

than thirty hours later at approximately 10:00 a.m. on November 10. During the

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first interview, Blackburn repeated that he was drunk, that he would not answer

any questions until he was sober, and that he wanted a lawyer. Blackburn did not

waive his Miranda rights during the first interview and made no admissions. The

trial court determined that any statements made by Blackburn during the first

interview were inadmissible for any purpose at trial.

Second Interview

[¶5.] The morning of November 10, Blackburn requested to see Investigator

Matt Sargent. At the beginning of the second interview, Investigator Sargent read

Blackburn his Miranda rights as follows:

Sargent: Alright. Before I ask, ask you any questions you
must understand your rights. You have the continuing right to
remain silent. Do you understand that?
Blackburn: Yes sir.
Sargent: Anything you say can be used as ev, used against
you in court. Do you understand that?
Blackburn: Yes sir.
Sargent: You have the right to a lawyer for advice before we
ask you any questions and to have a lawyer with you during
questioning. Do you understand that?
Blackburn: Yes sir.
Sargent: If you cannot . . . afford a lawyer, one will be
appointed for you before any questioning if you wish. You
understand that?
Blackburn: Ok.
Sargent: You understand that?
Blackburn: I understand that.
Sargent: Ok. If you decide to answer questions now without
a lawyer present, you will still have the right to stop quest, stop
answering at any time until you talk to a lawyer. You
understand that?
Blackburn: Yes.
Sargent: Yes?
Blackburn: Yep.
Sargent: Ok. Do you understand each of the rights I’ve just
explained to you?
Blackburn: Yes.

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The video taped interview continues with the following questions and answers that

involve the crux of this appeal:

Sargent: Keeping these rights in mind, do you wish to talk to
us now?
Blackburn: Yes.
Sargent: K.
Blackburn: I mean I’d like, I’d like there to be a lawyer present
just so I don’t fuckin’ step myself over the deep end or nothing
else, but I mean at this point I really don’t see why there needs
to be one because I, I, really I want to know what you guys
know. I was drunker an’ shit the other night when I was talking
to you. I was high on fuckin’ cocaine and I really don’t
remember a whole lot of what I told you the other night, but I
need to know what’s going on, what so we can, fuckin’, damage
control. So what, what do they know Matt?
Sargent: Tad come on.
Blackburn: I’m telling you. What do they know?

The trial court found that Blackburn’s answer was ambiguous and equivocal and as

such, required Sargent to clarify whether Blackburn wanted a lawyer or wanted to

proceed without a lawyer before continuing with the interrogation. Sargent did not

clarify at that point and continued the interrogation. Blackburn eventually

admitted (1) that he had been drunk and high on cocaine; (2) that he had been at

Magic’s house; (3) that as he attempted to leave, Magic grabbed him and he

punched and then stabbed her several times with a knife; and (4) that after the

knife handle broke, he hit her in the head with a rock. Only after these admissions

did Sargent attempt to clarify Blackburn’s earlier statement about wanting a

lawyer.

Sargent: I gotta ask you a question about a comment you
made. You said you wanted to get a hold of your mom so you can
get a lawyer.
Blackburn: Yes sir.

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Sargent: Also, in, in the very first start to our interview you
said you’d like something to the extent about having a lawyer
present but you don’t think it’s necessary right now.
Blackburn: Not, I don’t, I don’t feel like it’s necessary right now
because you know, you’re sitting here.
***
Sargent: Right. I just want to make sure that you’re not
telling me that you want to stop this.
Blackburn: No, no.
Sargent: Ok.
Blackburn: That, I’m, I’m, I’m not telling you that Matt. I just
know that somewhere along the time and the proceedings.
Sargent: Oh definitely.
Blackburn: You know, I’m, I’m gonna need a lawyer. And I
don’t want, I don’t want a PD man.
Sargent: K. So that’s the basis of that comment, is you don’t
want a PD though?
Blackburn: Yeah, yeah it’s, it’s, it’s, I’m not trying to stop the
conversation.
Sargent: Ok.
Blackburn: You know what I’m saying. I’m will, I’ll willingly
answer your questions without a lawyer.
Sargent: Ok.
Blackburn: But some times during the proceedings you know
I’d like to, I’d like to have contact with a lawyer.
Sargent: Ok. Alright.
Blackburn: You know. And I, I’m, I don’t need one to speak
through or nothing like that.

The trial court suppressed all of Blackburn’s statements prior to this clarification

that he did not want an attorney immediately. The State appeals raising one issue:

Whether the trial court erred in suppressing certain statements that Blackburn

made during his second interview with the police.

ANALYSIS

[¶6.] “We review a trial court’s grant or denial of a motion to suppress

alleged constitutional violations de novo.” State v. Cottier, 2008 SD 79, ¶18, 755

NW2d 120, 128 (citing State v. Johnson, 2007 SD 86, ¶21, 739 NW2d 1, 8-9).

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[¶7.] The trial court determined that during the second interview: (1)

Blackburn initiated the further discussion; (2) although he initiated further

discussion, he made an equivocal reference to counsel, and because he had not

already waived his right to counsel, the officers should have limited their further

questioning to clarifying Blackburn’s reference to counsel; (3) because the officers

failed to get that clarification, his admissions or confession are inadmissible as

substantive evidence up to the point toward the end of the interview when he

eventually did clarify that he did not want an attorney; (4) the second interview was

voluntarily given and, thus, usable for impeachment; (5) because the second

interview was voluntary, Blackburn’s statements at that second interview

subsequent to the time when he ultimately did clarify that he did not need an

attorney are admissible.

[¶8.] Blackburn asserts that the trial court should have suppressed all, not

only a portion, of the statements he made during the second interview. Blackburn

did not, however, file a petition for discretionary appeal or file a notice of review

regarding this issue. See SDCL 15-26A-22; see also State v. Koerner, 1999 SD 161,

¶4, 603 NW2d 718, 720 (notice of review filed in intermediate appeal); State v.

Tapio, 432 NW2d 268, 269 (SD 1988) (notice of review filed in intermediate appeal).

“This Court has consistently held that failure to comply with the notice of review

requirements results in a waiver.” A.L.S. Props., Silver Glen v. Graen, 465 NW2d

783, 787 (SD 1991) (citing Gratzfeld v. Bomgaars Supply, 391 NW2d 200 (SD 1986);

Rowett v. McFarland, 394 NW2d 298 (SD 1986); Application of Northwestern Bell

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Tel. Co., 326 NW2d 100 (SD 1982)). Therefore, we do not reach the issue of whether

all statements in the second interview must be suppressed.

[¶9.] In a custodial interrogation, the government must prove that the

accused knowingly and intelligently waived the right to counsel and the privilege

against self-incrimination. Miranda v. Arizona, 384 US 436, 475 (1966) (citing

Escobedo v. State of Illinois, 378 US 478, 490, n14 (1964)). The accused must be

informed “that he has a right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a right to the presence of an

attorney, either retained or appointed.” Id. at 444. The United States Supreme

Court established a bright-line rule in Edwards v. Arizona that if the accused

clearly asks for a lawyer during a custodial interrogation, the questioning must stop

until a lawyer is present. 451 US 477, 484-85 (1981). The Court said, “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. If the accused’s request for a

lawyer is ambiguous or equivocal at the time Miranda rights are given, the officers

must clarify the request and/or waiver before proceeding. See U.S. v. Rodriguez,

518 F3d 1072, 1078-79 (9thCir 2008); Nom v. Spencer, 337 F3d 112, 118 (1stCir

2003); State v. Collins, 937 So2d 86, 92 (AlaCrimApp 2005); Freeman v. State, 857

A2d 557, 572-73 (MdApp 2004); State v. Tuttle, 2002 SD 94, ¶14, 650 NW2d 20, 28;

State v. Leyva, 951 P2d 738, 743 (Utah 1997). “‘An equivocal request for an

attorney is one that expresses both a desire for counsel and a desire to continue the

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interview without counsel.’” State v. Copeland, 949 P2d 458, 462 (WashAppDiv2

1998) (clarified by State v. Radcliffe, 194 P3d 250 (Wash 2008), recognizing a

previous split in Washington Appellate Division Two) (quoting State v. Quillin, 741

P2d 589, 591 (WashApp 1987)).

[¶10.] In Smith v. Illinois, the United States Supreme Court emphasized the

distinction between waiver of Miranda rights and invocation of counsel. 469 US 91,

98 (1984). “Invocation and waiver are entirely distinct inquiries, and the two must

not be blurred by merging them together.” Id. The Court further emphasized:

The importance of keeping the two inquiries distinct is manifest.
Edwards set forth a “bright-line rule” that all questioning must
cease after an accused requests counsel. In the absence of such
a bright-line prohibition, the authorities through “badger[ing]”
or “overreaching”-explicit or subtle, deliberate or unintentional-
might otherwise wear down the accused and persuade him to
incriminate himself notwithstanding his earlier request for
counsel’s assistance.

Id. (internal citations omitted). The Court determined that Smith’s first statement

requesting an attorney was clear. Id. at 97-98. The police should have stopped the

interview. Instead, the police pushed Smith to continue. Smith then began to

waiver concerning his request for an attorney. The Court said that the defendant’s

subsequent equivocal responses did not make his first clear request for an attorney

ambiguous. Id. at 100.

[¶11.] The United States Supreme Court in Davis v. United States considered

the invocation of the right to counsel post Miranda waiver. 512 US 452 (1994). The

suspect in Davis initially waived his Miranda rights and answered the officers’

questions for about an hour and one-half before making an ambiguous reference to

needing a lawyer. Id. at 454-55. The question was whether the officers were

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required to cease the interrogation. The Court determined that “if a suspect makes

a reference to an attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only that the suspect

might be invoking the right to counsel, our precedents do not require the cessation

of questioning.” 1 Id. at 459 (emphasis in original). The Court held that “after a

knowing and voluntary waiver of the Miranda rights, law enforcement officers may

continue questioning until and unless the suspect clearly requests an attorney.” Id.

at 461. A person subjected to custodial interrogation must invoke the right to

counsel “sufficiently clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney.” Id. at 459.

[¶12.] However, courts, including this Court, have held that in a pre-waiver

situation where the accused has not yet validly waived the Miranda rights, the

officers must clarify the waiver before proceeding with the interview. See

Rodriguez, 518 F3d at 1078-79; Nom, 337 F3d at 118; Collins, 937 So2d at 92;

Freeman, 857 A2d at 572-73; Tuttle, 2002 SD 94, ¶14, 650 NW2d at 28; Leyva, 951

P2d at 743. In United States v. Rodriquez, the court held that the rule from Davis

requiring a suspect to clearly request an attorney addresses only the scope of

1. Courts have concluded that the following statements are ambiguous or
equivocal requests for Miranda rights: State v. Rogers, 760 NW2d 35, 58-59
(Neb 2009) (determining that statements prefaced by “I think,” “maybe,” or “I
believe,” or phrased in terms of a hypothetical are equivocal); Noyakuk v.
State, 127 P3d 856, 867-68 (AlaskaApp 2006) (determining that “Shouldn’t I
just have my attorney with me, or something?” was an equivocal request);
Henry v. State, 462 SE2d 737, 742 (GA 1995) (defendant’s response “I might
need one. If I need one,” was an equivocal statement and did not require
officers to cease questioning).

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invocations of Miranda rights in a post-waiver context. 518 F3d at 1078-79. The

court held:

[The] rule of Davis addresses only the scope of invocations of
Miranda rights in a post-waiver context. It is well settled that
“[i]nvocation and waiver [of Miranda rights] are entirely distinct
inquiries, and the two must not be blurred by merging them
together.” Smith, 469 US at 98. Davis addressed what the
suspect must do to restore his Miranda rights after having
already knowingly and voluntarily waived them. It did not
address what the police must obtain, in the initial waiver
context, to begin questioning.

Id. The Utah Supreme Court determined that Davis applied to an equivocal

request for Miranda rights post-waiver, not to pre-waiver situations. Leyva, 951

P2d at 743. If the equivocal invocation is pre-waiver, the officer must limit

questioning to clarify the intent of the accused. Id. “‘Any questioning after the

equivocal assertion of the right to counsel must be strictly limited to clarifying the

suspect’s wishes.’” Copeland, 949 P2d at 462 (quoting Quillin, 741 P2d at 591).

[¶13.] In State v. Tuttle, we recognized the importance of clarifying a

suspect’s ambiguous response to whether the suspect wished to waive his Miranda

rights. 2002 SD 94, 650 NW2d 20. We said:

After an officer has informed a suspect of his Miranda rights
and has determined that the suspect understands those rights,
the officer must then determine if the suspect is willing to waive
those rights and answer questions. If the suspect responds
ambiguously or equivocally, the officer must then focus on
clarifying the suspect’s intent.

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Id. ¶14, 650 NW2d at 28 (plurality opinion) (quoting Leyva, 951 P2d at 744). 2 It

logically follows from Tuttle that in the initial waiver of rights, the clarification

requirement regarding an ambiguous waiver of Miranda rights also applies to an

ambiguous request for an attorney. See Harvey Gee, Race and the American

Criminal Justice System: Three Arguments about Criminal Law, Social Science, and

Criminal Procedure, 85 U Det Mercy L Rev 115, 135 (Winter 2008) (asserting that

“the Davis rationale is limited to the post-waiver ambiguity, not an ambiguous

request for counsel in the context of the initial advisement of rights”).

[¶14.] Here, the State argues that Blackburn’s statement was not a request,

equivocal or otherwise, for an attorney or to stop the interview. Alternatively, the

State argues that if Blackburn’s statement is considered an equivocal request for an

attorney, his request is post-Miranda waiver and the officer could continue

questioning absent a clear request. Blackburn did not address whether he made an

equivocal waiver of his Miranda rights. Rather, Blackburn argues that the entire

second interview is inadmissible because it was involuntary. Blackburn bases this

argument on the premise that the second interview was a continuation of the first

interview, and because of the connection between the interviews, the coercive taint

2. In Tuttle, we determined that the defendant knowingly, intelligently, and
voluntarily waived his rights but that the defendant’s confession itself was
coerced. 2002 SD 94, 650 NW2d 20. Two Justices concurred in the plurality
opinion, and the other three Justices filed opinions concurring in part and
dissenting in part. The additional opinions did not dispute that an officer
must clarify the suspect’s intent after an equivocal wavier of Miranda rights.
Id. ¶¶37-64 (Gilbertson, C.J., Sabers and Zinter, J.J., concurring in part and
dissenting in part).

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from the first interview also cloaks the second interview. As stated supra, ¶8,

Blackburn did not properly preserve this issue for intermediate appeal.

[¶15.] A review of the taped interview indicates that Blackburn’s reference to

an attorney is part of his response to the advisement of rights. As Sargent read

Blackburn his rights, Blackburn indicated that he understood the rights. After

reading the rights, Sargent asked Blackburn: “Keeping these rights in mind, do you

wish to talk to us now?” Blackburn responded “yes,” but immediately conditioned

his response, saying, “I’d like there to be a lawyer present just so I don’t fuckin’ step

myself over the deep end or nothing else, but I mean at this point I really don’t see

why there needs to be one. . . .” After Blackburn’s response, Sargent did not limit

his questions to clarifying if Blackburn wanted an attorney.

[¶16.] Whether Blackburn’s request for an attorney was equivocal is

determined by “a reasonable person standard,” that is, whether “a reasonable police

officer in the circumstances would understand the statement to be a request for an

attorney.” Davis, 512 US at 459. The trial court determined Blackburn’s statement

was ambiguous or equivocal. The trial court’s determination recognized the

contradictory messages in Blackburn’s statement. In Blackburn’s response, he first

said, “I’d like there to be a lawyer present just so I don’t fuckin’ step myself over the

deep end or nothing else.” Had Blackburn stopped here, his message would have

been clear that he wanted an attorney. However, Blackburn continued, “but I mean

at this point I really don’t see why there needs to be one. . . .” Blackburn’s

statement expressed both a desire to have an attorney and a desire to continue

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without. The trial court was not in error in finding Blackburn’s statement

ambiguous and in need of clarification before continuing with the interrogation.

[¶17.] The State argues in the alternative that Blackburn’s ambiguous

request for an attorney came after he had validly waived his Miranda rights, thus

no clarification was needed. Waiver of Miranda rights is viewed in light of the

totality of the circumstances. See Tuttle, 2002 SD 94, ¶14, 650 NW2d at 28. During

Blackburn’s first interview, Blackburn requested an attorney more than twenty-five

times and also repeatedly refused to talk to anyone. The interrogating officers did

not heed Blackburn’s requests during the first interview. Blackburn was not

permitted to call an attorney at any time. Then, approximately thirty hours after

the first interview, Blackburn was interviewed a second time. He indicated that he

understood his rights. In answer to whether Blackburn wished to talk to the

officers, he said, “Yes,” but then qualified his answer with his response of wanting

an attorney but “not see[ing] why there need[ed] to be one” because he wanted to

know what the officers knew and what he may have told them the night before

when he was drunk and high on cocaine. Regardless of Blackburn’s experience with

the criminal system, he had not previously been charged with such a serious crime.

The ambiguity of his answer leaves the waiver of his Miranda rights in question.

As such, the officer had a duty to clarify Blackburn’s statement to determine if he

wanted an attorney. See Rodriguez, 518 F3d at 1078-79; Nom, 337 F3d at 118;

Collins, 937 So2d at 92; Freeman, 857 A2d at 572-73; Tuttle, 2002 SD 94, ¶14, 650

NW2d at 28; Leyva, 951 P2d at 743.

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[¶18.] Blackburn’s ambiguous request for an attorney was part of his answer

to the officer’s question of whether he wished to waive his rights. Consequently, the

State’s argument that Blackburn had already waived his right to an attorney when

he answered, “Yes,” parses the suspect’s answer unreasonably. This is unlike the

situation in Davis where the post-waiver ambiguous request for a lawyer came after

an hour and one-half of police questioning. Additionally, it appears that Sargent

had some question about Blackburn’s original statement since he came back to it

later in the interview in an attempt to clarify. Had Sargent clarified Blackburn’s

response initially, like he did later, Blackburn’s waiver of rights and invocation of

his right to an attorney could have been clearly determined.

[¶19.] We affirm.

[¶20.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,

Justices, and SABERS, Retired Justice, concur.

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