Officer’s Claim Not to Have Heard Suspect Ask for a Lawyer is Not Controlling; Would a Reasonable Officer Have Heard the Request is the Question.

State v. Chavarria-Cruz, Minn.S.Ct., 6/30/2010.  During a custodial interrogation Mr. Chavarria-Cruz invoked his right to counsel, only the interrogating officer claimed that he didn’t hear him do that.  The trial court admitted the interrogation and the court of appeals affirmed.  I wrote about this case here.

Here’s the state’s transcript of the pertinent portion of the interrogation:

Hanson: You know where I‟m coming from on that, don‟t you? I‟m telling you that, that cooperation and honesty gets you farther than anything else in this. Cooperation, honesty and remorse. I know if something happened like that, you wouldn‟t, what would your mom be like? You know, to come outside and see you lying out in the driveway? You know, take all the other stuff out of it. What would your mom do? You know what I‟m saying? Your brothers know that, your brothers know it was part of their life. But I just don‟t think that these other people, I think that they‟re trying to hang somebody. I think they‟re trying to paint somebody as a cold blooded killer that is not a cold blooded killer.
Chavarria-Cruz: You talking about me?

Hanson: Talking about you buddy.
Chavarria-Cruz: I guess I‟ll go to court then.
Hanson: Pardon?
Chavarria-Cruz: I guess I‟ll go to court.
Hanson: You don‟t want to cooperate with us?
Chavarria-Cruz: That‟s not . . . I‟m, I‟m cooperating here, talking to you has been like you know, I think I need lawyer . . .
Hanson: Don‟t you understand though? Wizard!2 These guys are putting the gun in your hand.
Chavarria-Cruz: Gun in my hand?
Hanson: Yes.
Chavarria-Cruz: Oh.

Chief Justice Magnuson believed that “A review of the tape recording reveals that Chavarria-Cruz actually said something closer to, “I‟m cooperating here, if I could just be like, you know, get me a lawyer.”

Anyway, the appellate court employs an objective test – whether a suspect has articulated his desire to have counsel present sufficiently clearly that a reasonable officer in the circumstances would understand the statement to be a request for an attorney - to conclude, in a de novo review, that the trial court made a mistake in admitting the confession.  Further, as this confession was the primary evidence used to convict, the error was not harmless.