The State Of Oklahoma v Robert Lee Smallen

S-2008-761

Filed: Feb. 5, 2009

Not for publication

Prevailing Party: State Of Oklahoma

Summary

# Robert Lee Smallen appealed his conviction for First Degree Murder. Conviction and sentence were affirmed. A. Johnson dissented.

Decision

The Order of the District Court suppressing the statements and videotaped interview of Robert Smallen is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the district court in suppressing the videotaped interview and statements made by Smallen?
• Did Smallen knowingly and voluntarily waive his Fifth and Sixth Amendment rights during the police interview?
• Was Smallen's initial refusal to waive his rights followed by an implied waiver due to subsequent interactions with police?
• Did the police continue interrogation after Smallen invoked his right to counsel, thereby undermining any purported waiver of rights?

Findings

• the district court did not abuse its discretion by suppressing the videotaped interview and the statements contained in it
• the district court's suppression order is affirmed

S-2008-761

Feb. 5, 2009

The State Of Oklahoma

Appellant

v

Robert Lee Smallen

Appellee

SUMMARY OPINION

A. JOHNSON, VICE PRESIDING JUDGE: Robert Lee Smallen was charged by Information in the District Court of Cherokee County, Case No. CF-2007-321, with First Degree Murder in violation of 21 O.S.2001, § 701.7. The district court granted Smallen’s motion to suppress statements made to police during a videotaped interview conducted shortly after he was taken into custody. Pending this appeal by the State, the district court stayed its suppression order. The State appeals claiming the district court erred by suppressing the videotaped statements. The single issue presented in this appeal is whether the district court abused its discretion by suppressing the videotaped interview and the statements contained in it by finding that Smallen did not knowingly and voluntarily waive his Fifth and Sixth Amendment rights to silence and counsel by continuing to talk to officers after being advised of those rights. Under the unique circumstances of this case, we find that the district court did not abuse its discretion. We therefore affirm the district court’s suppression order.

FACTS

Smallen was taken into custody and interviewed at the Muskogee County Sheriff’s Office on July 11, 2007. An Oklahoma State Bureau of Investigation (OSBI) agent and a Muskogee County deputy sheriff conducted the interview. The interview was recorded on videotape. Smallen moved the district court to suppress the videotaped interview on the grounds that his statements during the interview were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the hearing on the motion to suppress, the only evidence introduced by the State to prove its position that Smallen waived his rights was the recording of the interview. Neither the agent nor the deputy testified. The video recording of the interview shows that Smallen was given Miranda warnings advising him of his rights to remain silent and have an attorney present during questioning. Immediately after being advised of these rights, Smallen stated clearly that I don’t want to waive my rights. For approximately five minutes after that, however, Smallen continued to engage in some discussion with the agent and the deputy before explicitly insisting on having his attorney present. It is apparent from the video that Smallen was reluctant to talk to the officers throughout the course of the interview.

DISCUSSION

The State contends that Smallen impliedly waived his rights to counsel and silence by initiating further discussion with officers after expressly refusing to waive his rights. We review a district court’s decision to suppress evidence obtained during a custodial police interview for an abuse of discretion. The videotape of the interview shows, as the State contends, that Smallen did initiate further conversations with the officers after he refused to waive his rights. It is obvious from the tenor and context of those additional statements, however, that Smallen was only amplifying or attempting to explain why he was refusing to waive his rights: i.e., not knowing what’s going on, I don’t want to say something stupid, etc. These comments do not suggest a willingness to make potentially incriminating statements or deal with police unassisted by counsel. Additionally, it is apparent that the officers themselves did not believe Smallen had waived his rights because they repeatedly attempted to persuade him to talk to them despite his reluctance to do so. The interrogation should have stopped at this point, or at least the officers should have sought clarification of Smallen’s intent to waive his rights. Rather than stop the interrogation after Smallen refused to waive his rights or made the additional statement that he did not want to say anything stupid, however, the videotape shows a continuing conversation that was dominated by officers urging Smallen to talk or otherwise attempting to elicit information from him. This record is insufficient to establish that Smallen knowingly and voluntarily waived his rights to silence and assistance of an attorney. The district court did not abuse its discretion by ruling that Smallen’s statements must be excluded as evidence from the State’s case-in-chief.

DECISION

The Order of the District Court suppressing the statements and videotaped interview of Robert Smallen is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 22 § 1053(5)
2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
3. Davis v. United States, 512 U.S. 452, 461-62, 114 S.Ct. 2350, 2356, 129 L.Ed.2d, 362 (1994)
4. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)
5. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d, 362 (1994)
6. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)
7. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 - First Degree Murder
• Okla. Stat. tit. 22 § 1053 - Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Hopper v. State, 1987 OK CR 78, I 9, 736 P.2d 538, 540
• Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362
• Davis v. United States, 512 U.S. 452, 461-62, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362
• Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378
• Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694