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Criminal Practice – Constitutional – Confession – Custodial – Pre- & Post-Miranda Warnings

Although defendant voluntarily accompanied police to the law enforcement center and was not told he was under arrest, defendant was isolated with his questioners during a two-plus-hour interrogation. Once the investigators realized defendant’s statements conflicted with those of another witness, the encounter became a custodial interrogation, which led to defendant’s incriminating statement that he had “tapped” the murder victim.

The trial court should have granted defendant’s motion to suppress the incriminating statements he made before and after he was Mirandized.

Pre-Mirandized Statement

After defendant made an initial statement to investigators, they left the room to discuss the inconsistencies between defendant’s version and that of witness Michael Barksdale, and they returned to extend the interrogation to pursue their hunch about defendant’s possessive relationship with his television and his belief that the victim was trying to steal it. Of course, the investigators also knew from the victim’s autopsy that defendant’s cane could be the murder weapon.

A subsequent video-recorded interrogation revealed that the investigators had previously told defendant “we know what happened,” and Lead Investigator Fortner testified he was trained to confront witnesses with available evidence. This shift in investigatory purpose and technique echoes what occurred in State v. Navy, 386 S.C. 294, 688 S.E.2d 838 (2010), where it marked the point the court found the defendant was in custody. When the investigators realized defendant’s statements conflicted with Barksdale’s, that is when they turned it into a custodial investigation.

The more than two-hour length of the first unwarned questioning also points to a finding of custody.

Viewing all these circumstances together and considering how a reasonable person would have perceived their impact on his freedom of movement, we conclude they add up to a finding that defendant was in custody when he stated he “tapped” the victim twice.

Post-Mirandized Statement

After defendant admitted that he had “tapped” the victim, investigators moved him into a room where they could video the interrogation. Defendant was Mirandized and made further incriminating statements.

Defendant argues that his video confession was not admissible, relying on Missouri v. Seibert, 542 U.S. 600 (2004), which involved the police strategy of “question first”: questioning an unwarned suspect until he confesses, then delivering the Miranda warnings “midstream,” and having the suspect repeat the confession.

The same investigators conducted the second interrogation round, which was held in a room across the hall from where the first round had just ended. The investigators treated the rounds as continuous, even telling defendant they only wanted him to tell them “no more than what you’ve already said.” We cannot suspend reality and find the Miranda warnings effective at the late stage they were given.

There is no direct evidence the investigators set out to skirt Miranda, and it would be naïve to think we would find some. Here, we have a calculated investigatory interview structured by veteran homicide investigators who at times pitched defendant doubletalk.

We therefore hold Seibert requires exclusion of defendant’s post-Miranda statements.

Reversed and remanded.

State v. Hill (Lawyers Weekly No. 011-100-18, 8 pp.) (D. Garrison Hill, J.) Appealed from the Circuit Court in Greenville County (Perry Gravely, J.) Kathrine Haggard Hudgins for appellant; Alan McCrory Wilson, David Spencer and William Walter Wilkins for respondent. S.C. App.

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