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People v. McCurdy (2014) 59 Cal.4th 1063
Did the defendant invoke his Miranda rights while being questioned about the murder of a child? If so, did he then reinitiate questioning?
Reprinted with permission from Point of View, Alameda County District Attorney’s Office
McCurdy, a U.S. Navy seaman, kidnapped and murdered eight year old Maria Piceno in Lemoor. Her body was found about two weeks later in a creek near Bakersfield. Two days later, McCurdy’s ship was deployed to the Pacific and he was aboard. In the course of the investigation, officers identified McCurdy as the prime suspect and learned that he was now at sea near Japan. So four investigators were sent to the ship to interview him. When they arrived, McCurdy’s commanding officer ordered that he be escorted to an interview room. Because this was an order, it was apparently undisputed that McCurdy was now “in custody” for Miranda purposes.
The investigators began by engaging McCurdy in some small talk about his decision to join the Navy, hobbies, upbringing, and so forth. They then Mirandized him and McCurdy acknowledged that he understood his rights. Although he was not asked to expressly waive his rights, he impliedly did so when he voluntarily submitted to questioning.
The subsequent interview was quite lengthy as it was conducted on and off over four days. But for our purposes, it is only necessary to discuss four things that happened:
· After McCurdy was Mirandized and was told the purpose of the interview, he said “They always tell you to get a lawyer.” An investigator responded by saying that’s “up to you” but that “it was important for him to help with [Maria’s] disappearance.” McCurdy began answering the investigators’ questions.
· When asked if he had been molested when he was a child, McCurdy responded, “I want a lawyer.” But about 20 seconds later, as the investigators were starting to leave the room, McCurdy spontaneously said, “I don’t know if you guys got any other suspects,” and “I want to help you guys, but I don’t want to incriminate myself.” The investigators resumed the interview and McCurdy continued to answer their questions.
· The investigators confronted McCurdy with a pornographic videotape that officers had recovered in his storage unit in Lemoor. After admitting he had rented it near the time Maria was abducted, he said, “I can’t talk no more.” But the investigators interpreted this to mean he just needed more water (he had previously asked for some). One of the investigators gave him a glass of water and McCurdy responded by asking why they thought he had rented a video on that day. The questioning continued.
· In response to a question about his childhood, McCurdy said, “I’d rather not say.” He repeated this four times as the investigators continued to ask him about his childhood. After that, the questioning continued.
After the interview, McCurdy was arrested, removed from the ship and transported to the United States. Before trial, he argued that all of his statements should be suppressed because he had clearly invoked his Miranda rights at various times, but the investigators had continued to question him. For reasons we will discuss below, the court granted the motion as to some statements but not others. (This was probably not a major setback for the prosecution because the suppressed statements were apparently not incriminating.) In any event, the prosecution proceeded to trial with the evidence it had and the jury found McCurdy guilty with special circumstances. The judge sentenced him to death.
On appeal to the California Supreme Court, McCurdy argued that all of his statements to the investigators should have been suppressed because, among other things, he began the interview by invoking his Miranda right to counsel and also invoked his rights several times thereafter. Consequently, the main issue on appeal was whether any of McCurdy’s remarks clearly and ambiguously demonstrated an intent to immediately invoke the right to remain silent, the right to counsel, or both.
PRE-WAIVER SMALL TALK
McCurdy argued that the investigators’ pre-waiver small talk violated Miranda because it constituted “interrogation,” and that it also constituted illegal “softening up.” The court quickly disposed of both arguments. First, it ruled there was no “interrogation” because interrogation occurs only if the officers’ words were reasonably likely to elicit an incriminating response, and that the investigators’ small talk obviously did not fall into this category.
Second, the term “softening up” has never been defined but it arguably results if officers are about to interrogate a suspect who has indicated he does not intend to waive his rights, and then the officers engaged him in a lengthy pre-waiver conversation for the purpose of causing him to believe it would be advantageous to talk; e.g., they disparaged the victim to make it appear they were on his “side.” But the court ruled that the officers here did nothing of this sort and that the their pre-waiver remarks appeared to be merely an attempt “to establish a rapport with defendant.”
“THEY ALWAYS TELL YOU TO GET A LAWYER”
This comment, which came after McCurdy had been Mirandized, was plainly not an unambiguous invocation because, as the court explained, “A reasonable officer in these circumstances would understand that defendant was expressing the abstract idea an attorney might be in his best interest, but he did not actually request one.”
“I WANT A LAWYER”
Although this remark was plainly an invocation of the Miranda right to counsel, officers are permitted to continue to question a suspect who invoked if the questioning was initiated by the suspect and both of the following circumstances: (1) the suspect’s decision to initiate questioning was made freely, not as a result of badgering or coercion; and (2) it reasonably appeared that the suspect wanted to open up a general discussion about the crime, as opposed to merely discussing unrelated matters or “routine incidents of the custodial relationship.” The court then ruled that both of these requirements were met when, as the investigators were starting to leave the room, McCurdy stopped them by saying, “I don’t know if you guys got any other suspects.” Said the court, “[D]efendant’s statement about other suspects could fairly be said to represent a desire to start a generalized discussion about the officers’ investigation.”
McCurdy also contended that the investigators were required to re-Mirandize him before continuing the interview because his remark about wanting an attorney had somehow “undermined” his earlier implied Miranda waiver. The court summarily rejected the argument.
“I CAN’T TALK NO MORE”
As noted, when McCurdy was asked about the rented pornographic videotape, he replied “I can’t talk no more.” Although this remark could be deemed an invocation if viewed in the abstract, one of the investigators testified that he interpreted it as merely a request for more water since McCurdy had been having problems with his voice. The court ruled that this interpretation was reasonable, especially since McCurdy freely responded to the question about the videotape immediately after he was given water.
“I’D RATHER NOT SAY”
Finally, when McCurdy was asked about his childhood, he responded, “I’d rather not say” and then made similar remarks four times as the officers continued to question him about his childhood. But the trial court had ruled that these words constituted an unambiguous invocation and accordingly prohibited the prosecution from using any of his subsequent remarks in its case-in-chief. Thus, the Miranda violation was harmless because it could not have affected the jury’s verdict. McCurdy’s conviction and death sentence were affirmed.
 See Berghuis v. Thompkins (2010) 560 U.S. 370, 382; People v. Nelson (2012) 53 Cal.4th 367, 375 [“Although he did not expressly waive his Miranda rights, he did so implicitly by willingly answering questions after acknowledging that he understood those rights.”].
 See Davis v.United States (1994) 512 U.S. 452, 459 [“But 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.”].
 See Rhode Island v. Innis (1980) 446 U.S. 291, 301.
 See People v. Scott (2011) 52 Cal.4th 452, 478; People v. Honeycutt (1977) 20 Cal.3d 150.
 See People v. Davis (2009) 46 Cal.4th 539, 596; People v. McClary (1977) 20 Cal.3d 218, 226.
 Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045. Also see People v. Thompson (1990) 50 Cal.3d 134.
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