The mere fact that an interrogation begins as noncustodial does not
prevent custody from arising later in the interrogation.[McCulley v.
State](11-4-4)
On August 18, 2011, the Fort Worth Court of Appeals held that custody is
established with the manifestation of probable cause, combined with other
circumstances, which would lead a reasonable person to believe that he is
under restraint to the degree associated with an arrest.
¶ 11-4-4. McCulley v. State, No. 02-09-00222-CR, --- S.W.3d ----, 2011 WL
3672062 (Tex.App.-Fort Worth, 8/18/11).
Facts: McCulley called the police on the night of May 20, 2007. When police
arrived at his house, McCulley was covered in blood and his wife had been
stabbed. The police took McCulley to the hospital, where an ambulance
transported his wife, who later died. The police extensively photographed
McCulley. From there, McCulley accompanied the police to the police station,
where the police questioned him for almost four and one-half hours. McCulley
eventually implicated himself in his wife's death. Before trial, McCulley
filed a motion to suppress the statement he made to police. The trial court
held a suppression hearing.
At the suppression hearing, the State called Detective Kelly Brunson of the
City of Wichita Falls Police Department to testify. Brunson testified that
he was trained in conducting interviews for the police department. He
averred that he also had been trained regarding Miranda warnings and the
warnings contained in Texas Code of Criminal Procedure article 38.22.
According to Brunson, his sergeant called him on the night of May 20, 2007.
The sergeant sent Brunson to the hospital to “view the body and to speak to
[ ] McCulley.†After McCulley consented to the search of his house, Brunson
said that he asked McCulley to go to the police station so that he could
interview him. Brunson testified that McCulley obliged and that another
officer brought McCulley to the police station. He also said that McCulley
was not a suspect at this time and that the interview was intended to
“gather leads and any intelligence he might have to try to find out what
happened.†Brunson said that the videotaped interview began shortly before
1:00 a.m. on May 21.
Brunson said that as he interviewed McCulley, he had McCulley verify to him
that he was there of his own free will, and Brunson said that McCulley
freely answered his questions. Brunson testified, as the video of the
interview played for the trial court, that after asking McCulley, “is there
anything that you haven't talked about that might help me out on this case,
anything at all that might help me,†McCulley responded, “I just want to see
her,†and “I just want to go to the hospital.†After telling McCulley that
his wife “was still at the hospital,†Brunson told McCulley that he could
see her “as soon as we finish here.â€
Brunson said that during the interview, he reminded McCulley that he was
still free to leave: “I was just making sure that he understood that he was
there on his own free will, that he wasn't under arrest and he wasn't
charged with any offense.†Brunson testified that his specific statement was
“You're here under your own free will, you still understand that, right?â€
McCulley responded, “I would like to go to the hospital.†Brunson responded,
“Even if we let you go to the hospital, ... I don't know if we would let you
see your wife right away,†and “Now's probably not a good time to see her.â€
When asked what would have happened if McCulley had gone to the hospital,
Brunson said, “I wouldn't have let him see her [body].â€
Brunson testified that after asking to go to the hospital, McCulley asked,
“Can I go home?†Brunson responded that the police were still at his house
and that he could take him there as soon as they were finished. As the
interview continued, Brunson said that another detective stepped into the
interview room. Brunson explained to the other detective that McCulley
wanted to see his wife and that Brunson had told McCulley it probably wasn't
a “good idea at this time.†The detective responded that she did not think
it was a good idea for McCulley to see his wife and also that the police
would be at his home for some time. McCulley asked again, “Can I go home?â€
He was told again that it was not a good idea. Brunson said that what the
detective meant when she said that the police would be at McCulley's home
for a while was that the police would be processing crime-scene evidence and
no one would be allowed in the home. Brunson said that even after these
requests, McCulley was not a suspect at this time and that he was still free
to leave the interview.
By Brunson's account, if McCulley were to leave the police station, an
officer “would have transported him.†Brunson acknowledged that McCulley was
not wearing shoes. Brunson said that McCulley's transportation “would have
been up to me.†An hour into the interview, Brunson asked McCulley whether
he had committed the murder. Later, Brunson explained to McCulley that the
person closest to the victim is often the suspect in a murder. Brunson
maintained that for the majority of the nearly four and one-half hour
interview, McCulley was free to leave at any time but that to leave would
have required Brunson's assistance because “it's ... kind of a sneaky way
out.†When asked directly how McCulley would have left the police station,
Brunson said, “I would have to had shown him the way out.â€
Brunson said that just before 5:00 a.m., he and McCulley read McCulley's
Miranda rights and his article 38.22 rights together. Brunson averred that
McCulley acknowledged that he understood his rights. When asked whether he
was still willing to talk to Brunson, McCulley responded, “Can I just go to
sleep?†Brunson responded, “We need to talk. We need to get things worked
out.†He told McCulley, “You can go to sleep when we're done.†But Brunson
also said, “If you want to invoke your rights, that's your right also.â€
McCulley said, “I'll talk to you,†and signed a waiver that he understood
his rights and that he was talking to the police voluntarily. According to
Brunson, he did not have probable cause to arrest McCulley even at this
juncture, but McCulley “was becoming a focus of the investigation.†At that
time, another detective entered the room, and McCulley said, in response to
the detective's question about how he was doing, that he was not doing well
because he was being charged with murder. The detective responded that
McCulley was not actually being charged at this time. But Brunson did
testify that at this time, McCulley was no longer free to leave. The trial
court denied McCulley's motion to suppress.
The video of the interview reflects many of the statements Brunson testified
to. In the video, as the interview begins, Brunson tells McCulley that he is
not under arrest and is not being charged with anything. Brunson also has
McCulley verify that he knows he is there of his own free will. It is clear
that McCulley is not wearing shoes. Less than thirty minutes into the
interview, the questions by the detectives primarily concern McCulley's
timeline of events. McCulley's initial story is that his wife had left
earlier that day, that he was watching a movie, and that his stomach got
upset during the movie, so he went for a walk. When he arrived home from his
walk, he discovered his wife lying on the living room floor, bleeding.
According to McCulley's initial story, she asked for his help and declared
that she was dying.
Brunson asks McCulley about previous physical altercations with his wife and
a prior record of violence with her. Brunson asks several questions about
why McCulley was not wearing shoes, what shoes he wore when he allegedly
went for a walk during the movie, and when and where he took them off.
Brunson physically examines McCulley by looking at the bottoms of his feet,
looking at his hands, and lifting up his shirt and examining his torso.
Brunson questions McCulley about cuts on his hands. Each time McCulley asks
to go home or to the hospital, Brunson's res-ponses, although couched in
terms of that not being a “good idea†or not “right now,†were statements
suggesting that McCulley could eventually go to those places, but not during
the time the interview was being conducted. At one moment, McCulley asks
“when†he can go to the hospital. Brunson responds, “[A]s soon as we finish
here.†Later, when McCulley asks to go home, Brunson responds similarly
with, “[W]e can take you there when we get finished.â€
Multiple times during the interview, Brunson asks McCulley whether things
had gotten “out of hand,†and “[D]id you do this?,†and he tells McCulley
that the person closest to the victim is usually the suspect. Multiple
detectives ask McCulley about the whereabouts of a particular knife.
Multiple detectives also state to McCulley that his timeline does not make
sense.
In the interview, two detectives other than Brunson also question McCulley.
The first of the two question him before he was ever given any warnings. She
asks him about violence in his rela-tionship. The detective also tells
McCulley that, according to his timeline, he would have been leaving the
movie during its climactic moment. She tells him directly that his timeline
does not make sense. After almost four hours, Brunson and McCulley read
McCulley's Miranda and article 38.22 warnings together. McCulley eventually
states that he had “killed her†and had thrown the knife in a neighboring
yard.
The State introduced McCulley's videotaped statement at trial, and a jury
found him guilty of murder. The jury also found that McCulley acted in the
heat of passion. See Tex. Penal Code Ann. § 19.02 (West 2011). McCulley was
sentenced to twenty years' incarceration. This appeal followed.
Held: Affirmed
Opinion: Four factors are relevant to determining whether a person is in
custody: (1) probable cause to arrest, (2) subjective intent of the police,
(3) focus of the investigation, and (4) subjective belief of the defendant.
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996). Factors two and
four have become irrelevant except to the extent that they may be manifested
in the words or actions of police officers; the custody determination is
based entirely upon objective circumstances. Id.; see also Stansbury v.
California, 511 U.S. 318, 322–23, 114 S.Ct. 1526, 1528–29, 128 L.Ed.2d 293
(1994). Simply becoming the focus of the investigation does not necessarily
equate to custody for purposes of determining whether a statement is
voluntarily given. Meek v. State, 790 S.W.2d 618, 621 (Tex.Crim.App.1990).
As a general rule, when a person voluntarily accompanies law enforcement to
a certain location, even though he knows or should know that law enforcement
suspects that he may have committed or may be implicated in committing a
crime, that person is not restrained or “in custody.†Livingston v. State,
739 S.W.2d 311, 327 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108
S.Ct. 2858, 101 L.Ed.2d 895 (1988). More specifically, so long as the
circumstances show that a person is acting only upon the invitation,
request, or even urging of law enforcement, and there are no threats, either
express or implied, that he will be taken forcibly, the accompaniment is
voluntary, and such person is not in custody. Anderson v. State, 932 S.W.2d
502, 505 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517,
138 L.Ed.2d 1019 (1997). But the mere fact that an interrogation begins as
noncustodial does not prevent custody from arising later; police conduct
during the encounter may cause a consensual inquiry to escalate into
custodial interrogation. Ussery v. State, 651 S.W.2d 767, 770
(Tex.Crim.App.1983).
There are at least four general situations when a suspect's detention may
constitute custody: (1) when the suspect is physically deprived of his
freedom of action in any significant way, (2) when a law enforcement officer
tells the suspect that he cannot leave, (3) when law enforcement officers
create a situation that would lead a reasonable person to believe that his
freedom of movement has been significantly restricted, and (4) when there is
probable cause to arrest FN1 and law enforcement officers do not tell the
suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255. In the first
through third situations, the restriction upon freedom of movement must
amount to the degree associated with an arrest as opposed to an
investigative detention. Id. (citing Stansbury, 511 U.S. at 322–23, 114
S.Ct. at 1528–29). Concerning the fourth situation, the officers' knowledge
of probable cause must be manifested to the subject, and such manifestation
could occur if information sustaining the probable cause is related by the
officers to the suspect or by the suspect to the officers. Id.; see Ruth v.
State, 645 S.W.2d 432, 436 (Tex.Crim.App. [Panel Op.] 1979) (holding that a
suspect's “statement that he had shot the victim immediately focused the
investigation on him and furnished probable cause to believe that he had
committed an offense[;] [a]fter that time, the continued interrogation must
be considered a custodial oneâ€). Situation four, however, will not
automatically establish custody; rather, custody is established if the
manifestation of probable cause, combined with other circumstances, would
lead a reasonable person to believe that he is under restraint to the degree
associated with an arrest. Dowthitt, 931 S.W.2d at 255. Additionally, the
length of time involved is an important factor to consider in determining
whether a custodial interrogation occurred. Id. at 256.
Here, according to Brunson, McCulley voluntarily rode with an officer to the
police station from the hospital. Brunson's testimony is the only evidence
at the suppression hearing regarding McCulley's ride to the police station.
This testimony indicates that McCulley was not in custody when the interview
at the police station began. Miller v. State, 196 S.W.3d 256, 266
(Tex.App.-Fort Worth 2006, pet. ref'd) (reasoning that appellant's choice to
voluntarily meet police at a location demonstrated that police encounter was
initially noncustodial). McCulley, however, was not wearing shoes and had
blood on his clothing. At the suppression hearing, Brunson testified that in
order for McCulley to return home or to the hospital, the police would have
needed to transport him. When asked whether McCulley was dependent upon the
police for transportation, Brunson answered, “It would have been up to me.â€
Brunson also averred that leaving the interrogation room would have been
difficult, requiring knowledge of a “sneaky way out,†so much so that
Brunson said more than once that he would have been required to escort
McCulley out of the building. When taken as a whole, we conclude that
McCulley was physically deprived of his freedom in a significant way.
And even though the police never directly told McCulley that he could not
leave, a reasonable person in McCulley's situation would have believed that
his freedom of movement had been significantly restricted. Each time
McCulley indicated a desire to go to the hospital or his home, the police
indicated that he could not go to those places until the police were
“finished.†Furthermore, the police possessed probable cause that McCulley
had committed the murder, and Brunson expressed this directly to McCulley
several times during questioning. The questioning in the video reflects an
interview primarily focused on McCulley. His version of his timeline was the
subject of most of the questions asked by multiple police officers.
Regarding McCulley's statement that he had been on a walk only to come home
and find that his wife had been stabbed, Brunson asked McCulley several
questions about his lack of shoes and when he had taken them off. Brunson
asked McCulley multiple times, “Did you do this?,†and if things had gotten
“out of hand.†Brunson also examined McCulley's hands, asked about cuts on
his fingers, examined the bottoms of his feet, and even had him raise up his
shirt to physically examine his torso. McCulley had already been
photographed in this same manner at the hospital before he went to the
interrogation room. Multiple police officers directed questions to McCulley
that focused on the murder weapon.
At one point, Brunson explained to McCulley that the person closest to the
victim was a natural suspect. McCulley responded “I'm probably in trouble.â€
This statement later served as one of Brunson's transitions back to
questioning McCulley about his timeline and about whether McCulley had been
the one who stabbed his wife. McCulley was also told directly that his
timeline did not make sense, and detectives asked him why he would leave the
movie he was watching at such a climactic moment. Again, all of these
questions were framed by McCulley's questions about when he could go home or
to the hospital, and each time those requests were rebuffed with statements
indicating that McCulley could not go to either of those places and,
moreover, could not leave until the officers were finished questioning him.
Police finally read McCulley his rights almost four hours after they brought
him to the interrogation room. See Dowthitt, 931 S.W.2d at 255–56 (reasoning
that the length of time involved is an important factor to consider in
determining whether a custodial interrogation occurred). We conclude that
McCulley was in custody and the focus of the police's investigation well
before 4:55 a.m., when police finally read McCulley his Miranda and article
38.22 warnings. See id., 931 S.W.2d at 254 (holding that a suspect being the
focus of police investigation is a relevant factor in determining whether
suspect is in custody). But our analysis does not end with this conclusion.
The real question in McCulley's first point is whether the trial court erred
by overruling his motion to suppress his statement that was the result of
custodial interrogation without the benefit of police timely providing him
with Miranda and article 38.22 warnings.
In this case, the trial judge made specific findings that McCulley's
post-Miranda statement to police was voluntarily made. We find that the
record and reasonable inferences from that record support this finding.
Brunson administered appropriate Miranda and article 38.22 warnings prior to
McCulley's statement that he had killed his wife. In the video of the
interview, McCulley repeatedly said that he understood his rights and was
willing to talk to the police. Thus, predicated on the legal conclusion that
it was voluntarily made, we agree with the trial judge that McCulley's
statement was admissible. See Carter, 309 S.W.3d at 37 (holding that trial
court's finding that defendant's statement was voluntarily made supported
trial court's admission of statement despite mid-Miranda warning). We
overrule McCulley's first point.
Conclusion: Having overruled McCulley's points, we affirm the trial court's
judgment.