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Click here for the full text of this decision FACTS:Officer Adam Henderson of the College Station Police Department was patrolling the parking lot of a local bar at night when he noticed a crowd forming. As he drove toward the group, Henderson saw a man lying on the ground and a van speeding off. A witness from the crowd told Henderson the van’s driver, Robert Guy Russell Jr., had just stabbed someone. Henderson pursued the van a short distance until Russell returned to the scene of the stabbing and exited his vehicle. Henderson, with his weapon drawn, ordered Russell to the ground. The officer then handcuffed Russell and asked a single question regarding the whereabouts of the knife used in the stabbing. Russell indicated the knife was in the crowd now surrounding the victim. Henderson then took Russell to his patrol car and searched him. At this time Russell said, “I need my cell phone to call my lawyer.” Henderson responded, “I’m not going to ask you any questions without your lawyer.” Henderson placed Russell in the back of the patrol car for about an hour during which time police did not question him. Henderson took Russell to the College Station Police Department where he was given his Miranda rights for the first time. He waived his rights and gave a statement regarding the stabbing. In a pretrial hearing, the judge overruled Russell’s motion to suppress his confession holding that, pursuant to the public safety exception to Miranda, there had been no custodial interrogation at the time Russell stated that he needed to call his lawyer. Thus, Russell had attempted to invoke a right he did not yet have. At trial, the state played a recording of Russell’s statement to the jury. Russell took the stand to rebut that confession. The state relied heavily on this confession in its cross-examination of Russell and used it again in closing arguments of both the guilt-innocence and the punishment phase of trial. The jury convicted Russell of murder under the influence of sudden passion and assessed his punishment at 10 years of imprisonment. Russell argued that the trial court erred in admitting a confession he made after stating he needed to call his attorney. HOLDING:Reversed and remanded. The 10th Court of Appeals in Waco framed the issue as whether Russell’s request to call his attorney was an effective invocation of his Fifth Amendment right to counsel after being asked a single question by police but before being “Mirandized” for a formal police interrogation. Under Edwards v. Arizona, once a putative defendant has properly invoked his right to have counsel present during interrogation, questioning must cease unless initiated by the accused or unless the questioning is conducted in the presence of counsel, the 10th Court stated. But in narrow circumstances, the 10th Court stated, the threat to the safety of the officers and the general public outweighs the need for giving the Miranda warnings. This exception, the 10th Court explained, applies in situations where law enforcement needs to secure a weapon used in a crime. The trial court in this case erroneously concluded that the application of the public safety exception meant the questioning by police was not a custodial interrogation, the 10th Court held. Thus, the 10th Court stated, while the police had the authority not to Mirandize Russell, his invocation of his constitutional rights could not be ignored because the exigent circumstances had passed. Russell’s statement that he needed his cell phone to call his lawyer was a clear and unequivocal invocation of his right to counsel, the 10th Court found. As a result, the 10th Court held, the trial court erred in concluding that the police question regarding the knife was not a custodial interrogation. Russell clearly and unequivocally invoked his right to counsel, and the police obtained a waiver of Russell’s rights in violation of the no-initiation rule of Edwards. The 10th Court then did a harm analysis, holding that it could not find beyond a reasonable doubt that the erroneous admission of Russell’s confession did not contribute to the jury’s verdict of guilty of murder and its assessment of punishment. OPINION:Reyna, J.; Reyna and Vance, J.J. DISSENT:Gray, C.J. “Assuming that the trial court erred in overruling Russell’s motion to suppress his oral statement, any error was harmless. . . . The evidence of Russell’s guilt, without regard to the evidence of his statement, was overwhelming; and the evidence of self-defense, even with Russell’s statement, paltry.”

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