Appeal by defendant from judgment and commitment entered 19 July 1996 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 October 1997.
Judges Eagles and Martin, Mark D. concur.
The opinion of the court was delivered by: Wynn, Judge.
If a suspect requests counsel while in police custody, in order to protect the Fifth Amendment privilege against self-incrimination, the police must terminate interrogation unless the suspect initiates further communication. Because the defendant in this case initiated further communication after asserting his right to counsel, we affirm the trial court's denial of his motion to suppress his incriminating statements. Secondly, a defendant may be convicted of both armed robbery and larceny if the evidence shows that the defendant committed two separate takings. Because the evidence shows that the defendant in this case stole from the victim in her house and later stole her car, there were two takings to support his convictions for both crimes. Finally, we find no error in the trial court's admission into evidence of a tape recording of a 911 call from the victim's children.
Theresa Pollack was murdered by a gun shot to the head on 8 February 1995. In connection with this murder, James Thomas Jordan, Jr., was charged with first-degree murder, armed robbery, felonious breaking and entering, and felonious larceny. A jury convicted him of all charges and he was sentenced to consecutive terms of life imprisonment without parole. Jordan appeals.
Prior to his trial, Jordan moved the trial court to suppress inculpatory statements that he made while in police custody, contending that the statements were obtained in violation of his constitutional right to silence because they were elicited when officers continued to interrogate him, while he was in police custody, after he requested counsel. The trial court concluded that Jordan had invoked his right to counsel but that he also initiated further conversation with the police and made a knowing and intelligent waiver of his previously asserted right to counsel. On this reasoning the trial court denied Jordan's motion to suppress. We affirm that denial.
The trial court made findings based on evidence elicited during the voir dire hearing that after arresting Jordan, Charlotte police informed him of his rights and proceeded to question him. Jordan testified at the voir dire hearing that he understood his rights when they were explained to him. According to his testimony, his purpose in cooperating was to learn how much evidence the officers had against him.
Following several hours of interrogation, Jordan indicated that he "might" need an attorney. The officer questioning him immediately stopped, left the interview room, and informed his superior, Sergeant Rick Sanders, of what Jordan had said. Sergeant Sanders went into the interview room and asked Jordan if he needed a lawyer. Jordan responded "yes, I've told them the truth." Sergeant Sanders replied "no you did not that's bull shit, you're lying, and you're going to jail for murder." Sergeant Sanders then ordered his fellow officers to book Jordan.
The officers returned Jordan to the interview room and left him there alone for twenty minutes while an officer located the proper forms. When the officer brought the forms to Jordan, he requested to use the rest room. Officer Mike Sanders stated that sometime during the booking process and when he was taken to the rest room, Jordan stated "I told you I had something else to say if I was going to be charged." Jordan was returned to the interview room and left there by himself while the officer that he spoke to reported the statement. The officers conferred amongst themselves and concluded that the defendant was attempting to initiate further conversation. The police then re- approached Jordan, verified that he wanted to speak without a lawyer, and subsequently elicited the incriminating statements.
Other findings made by the trial court indicated that the police repeatedly informed Jordan of his rights during the interrogation process. In particular, when the police re-approached him after he had made the statement in the bathroom, the trial court found that a detective informed him that he had invoked his right to counsel, the police were compelled to stop interviewing him, and that they would not seek any further information from him unless he reinitiated contact. Furthermore, the officer again explained the defendant's right to not talk without a lawyer present. Jordan then said that he wished to talk with the officers. He then said that he wanted to waive his right to have an attorney present, and went on to make the incriminating statements.
Once a suspect in police custody requests counsel, the police may not further interrogate the suspect until counsel has been provided, unless the suspect initiates further communication. Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386 (1981). In Rhode Island v. Innis, 446 U.S. 291, 301-02, 64 L. Ed. 2d 297, 308 (1980), the United States Supreme Court established the test for what constitutes interrogation: [Interrogation is a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect . . . . But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. (footnotes omitted) (emphasis added).
We agree with the trial court that Jordan invoked his right to counsel. Thus the initial issue is whether the police continued to interrogate Jordan after he asserted that right. Jordan contends that the remarks Sergeant Sanders made to him after he invoked his right to counsel constituted the functional equivalent of interrogation, both when considered alone and in combination with the booking procedure. We disagree.
The officer's statement in this case was not interrogation or its functional equivalent. The entire exchange was very brief. Nor was this statement "reasonably likely to evoke an incriminating response." There is nothing to indicate that an officer should have known that this statement would lead the suspect to make an incriminating response.
We reach the same Conclusion when viewing the statement in context with the booking procedure used. The officer left the room and closed the door after making the statement. The policemen left Jordan alone while they got the forms for booking him. In contrast to Jordan's contention, the lack of police presence during the booking process is not reasonably likely to evoke an incriminating response. ...