Page 34 - TPA Journal March April 2023

invocation. That inquiry depends on the balancing and that he wanted sleep suggested that a brief
of five factors: (1) whether the suspect was pause to get some sleep was what he wanted.
informed of his right to remain silent prior to the Although Ranger Vela did not immediately honor
initial questioning; (2) whether the suspect was this request, Appellant was given a two-hour break
informed of his right to remain silent prior to the during which he could sleep. Appellant testified
subsequent questioning; (3) the length of time that he was not permitted to sleep, but the trial
between initial questioning and subsequent court was free to believe the rangers’ testimony to
questioning; (4) whether the subsequent the contrary and in fact found that Appellant was
questioning focused on a different crime; and (5) given the opportunity to sleep for two hours. And
whether police honored the suspect’s initial the warnings were read again before the second
invocation of the right to remain silent. interview even though Appellant indicated that
they were not necessary. And Appellant gave new
We have held that resumption of questioning after information in the second interview, not traceable
two hours was permissible when the defendant to his earlier admissions, when he talked about
requested “a little more time” before talking and firing a gun, being “guilty,” and trying to rob the
was given a new set of Miranda warnings before Vega family because he had been threatened.
the second interrogation.
The question then is whether the errors in
Appellant’s statement in the first interview that he admitting the latter portion of the first interview
wanted to sleep was not an unambiguous and the latter portion of the second interview were
invocation of his right to cut off questioning. We harmless. Before Appellant invoked his right to
will assume that his later statement, “I don’t want cut off questioning the first time, he had already
to continue talking anymore right now,” was an admitted to the following incriminating facts: (1)
unambiguous invocation and that the subsequent he was the driver of the red SUV, (2) he
statement, “Like I told you; I don’t want to encountered the Vega family, (3) shots were fired
continue talking right now” was a reiteration of (by the Vega family), (4) Appellant had thrown
that invocation. This would make some parts of away a gun or that a gun had been possessed by
the first interview inadmissible: his admission that the passenger, and (5) there was a crime that
he possessed the pistol for a while, that he “ha[d] to be punished.” Appellant also said that he
imagined the pistol was in the brush, and that he had taken drugs and did not remember things.
remembered the pistol being in the SUV. We will Facts (1) through (3) established unequivocally
also assume that his later statement in the second that Appellant was present during the crime and
interview, “I don’t want to talk about this was the driver. This eliminated any possible
anymore, sir,” was an unambiguous invocation of defense based on mistaken identity. And if the jury
his right to cut off questioning. That would render believed the eyewitness testimony that the driver
inadmissible the later statements about what shot Harvey, it meant that Appellant was the one
happened to the gun and the caliber of the gun. who killed Harvey. Facts (4) and (5) further
tended to incriminate Appellant by suggesting that
But this did not render all of the statements in the he did more than just run away from being shot.
second interview inadmissible. Appellant At worst, the allegedly inadmissible admissions
was informed of his rights before both the first and made in the latter part of the first interview
second interviews. Although the passage of two and the latter part of the second interview were
hours might not seem to be a long time, minor points: admitting to personally possessing a
Appellant’s statements in the first interview that firearm, knowing the firearm’s location, and
he did not want to continue talking “right now” knowing that the firearm was a .45. This is

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