Case Summary - Thai Ngoc Nguyen v. State

A police officer stopped Thai Nguyen for traffic violations. The passenger, Brian Sanchez, owned the car and gave the police consent to search after both guys gave conflicting stories. The officer arrested Sanchez when he found methamphetamine in Sanchez's bag. Sanchez, of course, said it belonged to Nguyen. The officer placed Sanchez in the back of the patrol car, and then arrested Nguyen, presumably for traffic violations. As the officer read Nguyen his rights under Miranda and article 38.22, Nguyen invoked his right to counsel. The officer clarified that Nguyen wanted an attorney, and stopped talking to him without finishing the warnings.

The officer put Nguyen in the back seat of the patrol car with Sanchez. A microphone and recording device surreptitiously recorded their conversation. Sanchez pleaded with Nguyen to take responsibility for the drugs. After a few minutes, Nguyen agreed and called the officers (another officer had arrived) to the car. They did not hear him. Both Nguyen and Sanchez called for the officers, and finally the officer returned.

The officer specifically told Nguyen that he wasn't going to ask him a question, but he informed Nguyen of the charges Sanchez and he were facing. Nguyen claimed the drugs, and cried about it. Police found more drugs they attributed to Sanchez, so both were arrested.

Here's the kicker. The State charged Nguyen with hindering Sanchez's apprehension based upon his false confession rather than drug possession. At the bench trial, Nguyen claimed that the statement was taken in violation of his right to counsel and the oral statement was inadmissible because the officer never told Nguyen of his right to terminate the interview as required by Article. 38.22, section 3(a).

The court of appeals reversed in an unpublished opinion. Noting that the parties did not dispute custody, the court held that the officer's statement to Nguyen "Do you not understand what I'm saying? If you want to tell me that that's your meth, then tell me that's your stuff. Other than that, it's his." subjected him to interrogation. Then, based solely on the statute, the court held that the complete warnings weren't given so the audiotaped statement was inadmissible. [Here's a link to the court of appeals case info if you're interested.]

In a 5-4 decision, the Court of Criminal Appeals affirmed. Judge Keasler, writing for the majority, first set out the three issues involved. First, he makes clear that this is a pure statutory issue under article 38.22. Second, he dispenses with the argument that evidence of a crime that occurs after the illegality, in this case the failure to read the warnings, should not be suppressed under article 38.23. He notes that this case was decided entirely under article 38.22 which is a procedural evidentiary rule independent of the state exclusionary rule. There is no exception in article 38.22 that allows for the admission of statements that themselves constitute a crime.

Third, he dismisses the State's claim that Nguyen was not "in custody" in light of Herrera v. State for the offense of hindering. A person is in custody when he is formally arrested, as Nguyen was here. Herrera dealt with a situation where an inmate is in the custody of the government in a jail, prison, or similar institution but not otherwise under formal arrest [cough, cough, Herrera had been formally arrested on an outstanding warrant, cough, cough]. So, Nguyen was "in custody" for purposes of article 38.22.

Finally, the Court rejected the argument that article 38.22 only applies to statements offered for their truth. The Court categorizes this type of statement as "New Crime" admissions, taking a cue from Professor LaFave. Basically, if a defendant during questioning commits another crime, like bribing the officer, it doesn't make sense to extend Miranda protections to that statement because excluding such statements doesn't further the goals of Miranda. However, this, says the majority, is a 38.22 case, not a Miranda case, and there is no exception listed in section 5 that would exempt a statement that might be an independent verbal act from he warning requirement. The majority even quotes section 5 that exempts certain types of statements from the warning requirements, such as statements that are the res gestae of the arrest or offense. Based on the forgoing, the Court holds that the express language of article 38.22 does not include an exception for statements that are not confessional in nature, do not implicate the accused for the offense prosecuted, or constitute an offense. [Here's a link to the CCA case info if you're interested.]

Judge Johnson wrote a dissenting opinion. According to her dissent, the statement was not the product of custodial interrogation. Nguyen was undeniably in custody and he invoked his right to counsel, but he reinitiated contact. His first statement that the drugs were his satisfied the hindering apprehension and it was not the product of custodial interrogation, neither were the next four iterations of the statement. Judge Cochran, Judge Holcomb, and Presiding Judge Keller also dissented, but without an opinion.

* * * * *

Well, I've gone back and forth over what to say. I do think it's useful to point out that I think Keasler's distinction between this case and Herrera is pretty weak. When exactly is being held in jail not associated with formal arrest? I get what he's doing, and I certainly understand it. He wants to limit the scope of Herrara. But he kind of has to rewrite history to do it. Herrera was arrested on a warrant and held in jail when the police questioned him about a different offense, so I don't see how he was held in jail but not under formal arrest. He probably would've been better off noting the details we had about Nguyen's restricted movement that we didn't have in Herrera. Unless we're going to overrule Herrera, that is, in which case, they needed to say that that's what they're intending to do.

I do wonder whether the res gestae exception would apply here, but I can understand if they determine that it doesn't. Over time the phrase has been slammed for the confusion it's created, and I think because of that confusion it's become more and more synonymous with "excited utterance". Such a circumstance certainly doesn't apply here. However, the original latin means "things done" and if you look back at its origins it's supposed to be for situations where the transaction speaks through the person. This suggests to me that it was not meant to be a reliability of the statement question (which is the cornerstone of why we let in "excited utterances"), it was because the statement itself is a verbal act. There's some support for this theory under "res gestae", albeit minimal, in a case called Ramos v. State. The Court subsequently retreated from the "verbal act" theory of res gestae and went more in line with "excited utterance", but it does seem a little silly to me that a statement that can be a product of inquiry from police might be exempt from the article 38.22 requirements just because it's basically admissible hearsay. The facts under this case are pretty unique, and if the "verbal act" theory of res gestae doesn't work here, then I guess there's not much point of having a res gestae exception in the first place. This Court has given us a few history lessons explaining arcane and confusing doctrines in the past, I sure would've liked it if they'd considered that, even if they ultimately dismiss it. You know, before saying this doesn't fit in any exception. But what do I know, I thought there was an independent illegality argument to be made.

It's hard for me to say all this because of all the Judges Keasler's my fave, but even Homer nods.