John A. Parkins, Jr. Superior Court Judge
In 1991 Defendant Wright made a videotaped statement to police in which he admitted a role in the murder of Philip Seifert. His confession was used at his trial, and he was convicted of murder and associated offenses. He was sentenced to death. A complex procedural history followed, and Wright was eventually granted a new trial. Presently before the Court is Wright's motion to suppress his confession in which he contends, among other arguments,  that it should be suppressed because the Miranda warnings administered to him before his confession were insufficient. The State responds that the Court should not consider Wright's argument because it is foreclosed by the doctrine of the law of the case. Alternatively, the State argues the warnings given to Wright satisfied Miranda.
The threshold question here is whether Wright's claims are barred by the law of the case doctrine. Although the Delaware Supreme Court previously held that these claims were procedurally barred by Superior Court Criminal Rule 61, that rule does not apply to these proceedings. The law of the case doctrine differs from the procedural bars of Rule 61 in that the law of the case doctrine extends only to issues which were actually decided. Wright's Miranda claims were never presented to the Delaware Supreme Court, much less decided by that Court. Likewise, those claims were never presented to, or decided by, this Court. Consequently, his argument is not barred by the law of the case.
Turning to the merits, the law does not require any specific language be used when administering the warnings so long as they reasonably convey all four of the so-called Miranda rights. Importantly, any warning which suggests a limitation on one of those rights renders those warnings invalid. The warnings given in this case contain such a limitation. The interrogating detective told Wright he had a right to appointed counsel if "the State feels you're diligent and needs one, " thus incorrectly suggesting to Wright that he was entitled to appointed counsel only if the State felt he needed one. Accordingly, the ensuing statement may not be used by the State as part of its case-in-chief in Wright's retrial.
Philip Seifert was murdered in January 1991 while working as a clerk at his brother's liquor store, known as the HiWay Inn, which was located just outside the Wilmington city limits on Governor Printz Boulevard. Since the HiWay Inn was located outside the city the Delaware State Police had responsibility for investigating this crime. The police had little evidence to go on when the investigation began- there were no eye witnesses to the shooting, the murder weapon was never recovered, no shell casings were found, and there were no fingerprints at the scene other than those of the store owner. In an effort to develop a lead, State Police Detective Edward Mayfield, the chief investigating officer, walked the local neighborhoods at night offering twenty dollar bills in exchange for information. Little or no information was forthcoming until an anonymous note appeared at the HiWay Inn stating that someone named "Marlo" was involved in the killing. Police knew that Wright's street name was "Marlow, " and they quickly identified him as a possible suspect. They lacked sufficient evidence to obtain a warrant for Wright's arrest for the HiWay Inn murder, but they did have enough to arrest him for two unrelated crimes which had taken place within the Wilmington city limits. The Wilmington Police obtained a warrant to arrest him for these unrelated crimes and a daytime warrant to search his home.
Wright's home was located within the city, so shortly after six a.m. on January 30, 1991 a Wilmington police S.W.A.T. team executed the arrest warrant and assisted other officers in searching Wright's home. Wright was immediately taken to Wilmington Police Department's central headquarters where he was searched and booked. He was then placed in an interrogation room where he was shackled to a chair. By design, the room, which measured seven feet by seven feet, had no windows or clock. It contained only a chair for the suspect, a small table, and a chair for the interrogator. There was also a camera mounted on the ceiling which could be used to make video and audio recordings of interviews taking place in the room. The police also had the capability of transmitting the audio of interviews from the interrogation room to nearby detective offices where others could listen in.
Wright's first interrogation was conducted by Detective Merrill of the Wilmington Police Department, who questioned him about one of the unrelated crimes. The detective later testified that he advised Wright of his Miranda rights prior to questioning. By 1991 Miranda was 25 years old, and police had considerable experience with it. Most, if not all, police agencies had developed standard routines in order to avoid the "litigation risk of experimenting with novel Miranda formulations." One such tool was the use of cards from which to read the Miranda warnings. Indeed, Delaware judicial opinions written prior to Wright's interrogation often refer to the use of a "Miranda card" by officers administering those warnings. Nonetheless, in the instant case Detective Merrill did not use a Miranda card, but instead recited the warnings from memory.
The risk, even for seasoned detectives, of not using a Miranda card is illustrated by testimony elicited in 2009 from Detective Merrill by the State during the Rule 61 hearing. The Deputy Attorney General asked Detective Merrill:
Q. (By State): Do you recall, sitting here, what rights you recited to him?
Q. And can you tell the Court what they were?
A. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during this questioning, and you can terminate the questioning at any time.
These warnings omitted the right to appointed counsel. The Court does not believe that eighteen years later Detective Merrill could remember the precise warnings he gave Wright, even though the State asked him and he said he remembered them. It does underscore the risk, however, of misstating the Miranda rights when giving them from memory.
The next detective to question Wright was Wilmington Detective Robert Moser. At various times throughout this prolonged litigation Detective Moser offered conflicting testimony about whether he administered Miranda warnings to Wright. At a pretrial suppression hearing he testified he gave such warnings, but a few months later at Wright's trial he testified he did not give any warnings because Wright had already been "Mirandized." In a 2009 evidentiary hearing Detective Moser again testified that he gave those warnings, but this time he added he obtained a written acknowledgement of those warnings from Wright. Contemporaneous judicial opinions from the period often refer to the use of written Miranda waivers,  and Detective Moser stated that it was standard procedure in 1991 to obtain written acknowledgements and waivers before questioning a suspect. No written waiver form from any of the three interrogations of Wright, however, has ever been produced.
Detective Moser's unrecorded interrogation began with a discussion about the second unrelated Wilmington crime. According to the detective, the atmosphere during his interrogation was relaxed-he stated he leaned back in his chair and listened to Wright, who seemed anxious to talk. During the course of the day Wright was given a submarine sandwich and two sodas. Except for occasional bathroom breaks, Wright remained in the interrogation room prior to Detective Mayfield's interrogation. The relaxed atmosphere during Detective Moser's interrogation was interrupted when a second State Police detective assigned to the case burst into the room and told Wright, "I'm in charge here and you're going to tell me what I want." Wright refused to speak to the interloper, who apparently did not stay long. After the second State Police detective departed, Wright again started to talk with Detective Moser. At some indeterminate time during the interrogation, Wright brought up the subject of the HiWay Inn killing. At first, according to Detective Moser, Wright suggested that someone else was involved, but as the questioning wore on Wright's story shifted and he eventually told Detective Moser that he was involved. Wright stated that an acquaintance, Lorinzo Dixon, was the mastermind of the crime and threatened to kill him if he did not shoot the clerk.
Detective Mayfield listened to Detective Moser's interrogation via a remote connection to a nearby detective's office. Eventually Detective Mayfield decided he had heard enough and was ready to interrogate Wright himself. This interrogation began roughly 13 hours after Wright was first arrested. Wright was moved to a conference room where video equipment had been set up, and Detective Mayfield began to question Wright ostensibly shortly after 7:30 p.m. Unlike the previous interrogations, this one was videotaped.
Despite the fact that the police had the capability of recording Wright's first interrogations using the camera mounted on the ceiling, neither of the first two interviews nor the warnings alleged to have been given to Wright was recorded. Detective Moser explained the absence of recordings; "believe it or not, back then video tape was expensive." On the other hand, Detective Mayfield told the Court that the "Delaware State Police practice at that time was we always audio or videotape the interviews of people." The State offered no explanation why, even if video tape was expensive, audio recordings were not made of the first two interviews.
Turning to Wright's condition at the time of the interrogation, Detective Mayfield testified that in 1991 it was the practice of the State Police not to interview suspects who were intoxicated on drugs or alcohol. According to the detective, this practice as well as his training often caused him to delay interviews when the suspect was thought to be intoxicated. In fact, prior to interrogating Lorinzo Dixon the detective asked Dixon whether he was intoxicated. He asked no such question of Wright, however.
The trial judge found that Wright was intoxicated on heroin while he was being interrogated. At least part of that finding was based on her comparison of Wright's demeanor on the videotaped confession with his later demeanor in the courtroom. Substantial other evidence corroborates her finding. The search of Wright conducted when he was booked that morning failed to disclose that Wright was then in possession of heroin. The trial judge found that he used the secreted heroin during bathroom breaks occurring during the day. Another indication of his intoxication was the bizarre behavior Wright exhibited during the Moser interview. At one point, he began speaking softly, almost inaudibly, because he feared his answers were being overheard by others. Later, Wright curled up in a fetal position under the table in the interview room. At yet another point during the Moser interrogation, Wright insisted on writing down his answers on a piece of paper, passing the paper to Detective Moser who in turn handed it back to Wright, whereupon Wright would eat it.
In the 2009 hearing Wright presented unopposed substantial credible testimony from several nationally-recognized experts leading to the conclusion that Wright's confession was unreliable. That expert testimony was discussed in this Court's 2012 opinion. Some examples will suffice to describe its nature and import. There was expert testimony that Wright was withdrawing from heroin intoxication during the last interrogation, and that persons undergoing heroin withdrawal will do or say anything in order to get another fix. Still another expert testified about Wright's intellectual deficits, noting he was profoundly impaired to a point akin to mental retardation. Another expert testified that he administered a Gudjonsson Suggestibility Scale, which is a recognized test used to determine the degree to which a person is subject to suggestion. That test showed that Wright was "extremely suggestible" and was more likely than 998 people out of 1000 to change his answers in response to suggestion or pressure from his interrogator. The expert pointed to multiple instances during the recorded interrogation when Wright changed his answers in response to suggestions from Detective Mayfield. For example, a witness who saw two unidentified individuals fleeing the scene told police they were wearing dark clothing. In the interrogation Wright told the police he did not remember what pants he was wearing. The transcript shows that Detective Mayfield steered him into stating he was probably wearing jeans:
EM [Detective Mayfield]: What about yourself, what were you wearing?
W: I can't really say. I forgot. It's been, I can't really say.
EM: You have no idea at all?
W: No, sir.
EM: Do you usually wear jeans?
EM: Well, do you think you had jeans on that night?
W: Yeah. I probably had jeans on.
Although forewarned of the array of expert evidence Wright intended to call and the substance of their proposed testimony, the State offered nothing to contradict it.
There is other evidence calling into question the credibility of Wright's confession. During his interrogation Wright repeatedly got key facts wrong. For example, he stated the caliber of the pistol he used was different than the caliber of the gun actually used to kill Mr. Seifert. At another time during the interrogation he told the detective that one shot was fired, when in fact there were three. At still another point Wright told the police that Mr. Seifert was lying on the floor when he fled the liquor store. In fact the victim's head and chest were still on the counter when he was first discovered.
The unopposed expert evidence and the inconsistencies between Wright's statement and the facts led this Court to conclude that his statement was unreliable:
In particular, the court finds that (1) Wright likely did not understand his rights when given the Miranda warnings; (2) Wright was predisposed to being easily persuaded; (3) Wright's lack of sleep, the length of his interrogation, his heroin intoxication, and the early withdrawal stages all exacerbated his predisposition to suggestion; and (4) the interrogation was designed in part to suggest the "correct" answers to Wright.
The State urges that despite all of this, Wright's confession was reliable because he told Detective Mayfield things only the killer would know. The State has never explained, however, precisely what information Wright knew (and got correct) that "only the killer would know."
The notion that Wright knew information only the real killer would know is belied by the fact that at least some information was likely fed to him. The Court discussed a moment ago Wright's amenability to suggestion and how Detective Mayfield's questioning at least sometimes steered Wright in the direction of "correct" answers. Wright contends that he was also fed information about the killing during the Moser interrogation, a contention that the trial judge rejected because the only thing Detective Moser knew about that killing was the sketchy information contained in the so-called State Police pass-on. Since then, new evidence-unavailable to the trial judge-has come to light which leads the Court to conclude that Detective Moser had access to far more information than what was available from the pass-on.
Detective Mayfield denied providing any information to Detective Moser about the HiWay Inn killing. According to Detective Mayfield, at that time there was considerable inter-agency rivalry between the Delaware State Police and the Wilmington Police, and those agencies were reluctant to share information with each other about their cases. The detective testified he would therefore not have shared information about the HiWay Inn killing with the Wilmington Police, including Detective Moser. The Court finds otherwise. There is substantial evidence that the Wilmington Police cooperated with the Delaware State police in connection with the HiWay Inn murder:
• The entire operation was geared toward obtaining evidence in the HiWay Inn case. Detective Merrill met with the Wilmington Police in the early morning prior to the execution of the arrest and search warrants. He was present when Wright was arrested and when his home was searched. When he was asked about the presence of Delaware State Police detectives Wilmington Detective Merrill testified:
Q. And the Delaware State Police detectives?
A. They were there also.
Q. What was their reason for being there?
A. It was their case. They were investigating another case and they thought there might be some evidence in this one.
• Detective Mayfield listened by remote connection as the Wilmington detectives interrogated Wright.
• Detective Mayfield met with Detective Moser during the latter's interrogation of Wright and urged Moser to "Keep it up. It takes a long time. Do the best you can. We don't have anything now, just try to get what you can."
• Detective Mayfield asked Detective Moser to sit in during the former's interrogation of Wright.
• Detective Mayfield again asked Detective Moser to sit in on his interrogation of co-perpetrator Lorinzo Dixon, who was arrested weeks later and who was not implicated in the unrelated city crimes for which Wright was arrested.
• Detective Mayfield authored a contemporaneous report in which he wrote he and "the Wilmington Police Detectives worked hand in hand with suspects, informants and anonymous phone calls and/or messages, in developing a suspect."
• Detective Mayfield met with Detective Browne of the Wilmington Police to discuss whether the HiWay Inn killing could have been related to an attempted robbery of a nearby liquor store, which occurred roughly an hour before the HiWay Inn robbery/murder.
When the trial judge ruled that Detective Moser could not have fed information to Wright because Moser was unaware of such information, she did not know that Detective Mayfield conferred with Detective Moser during the latter's interrogation. In light of this new evidence and the other evidence described above, the Court now finds it is more likely than not that Wright was fed information "that only the killer would know."
It is against this factual backdrop that Wright challenges the sufficiency of the Miranda warnings give to him. Detective Mayfield's warnings consisted of the following:
Basically, you have the right to remain silent. Anything that you say can and will be used against you in a court of law. You have the right, right now, at any time, to have an attorney present with you, if you so desire. Can't afford to hire one, if the state feels that you're diligent and needs one, they'll appoint one for you. You also have the right at any time while we're talking not to answer.
He concluded his Miranda warnings with the following:
Do you understand what I've asked [sic.] you today? Okay. Do you also understand that what we're going to be taking is a formal statement and that this statement's going to be video taped? Okay. Are you willing to give a statement in regards to this incident? Say yes or no.
The alleged defect is that Wright was told: "Can't afford to hire one, if the state feels that you're diligent and needs one, they'll appoint one for you." Detective Mayfield denied he used the phrase "if you are diligent" and insisted he said "if you are indigent." In the past the State has asserted that, because of his experience, Detective Mayfield most likely used the word "indigent." According to the State, "[a]t the time Detective Mayfield read Wright his Miranda warnings, he had been a State Trooper for 9 years, and had made thousands of arrests and administered Miranda warnings in all non-traffic arrests." The detective's experience, however, hardly suggests that he gave proper Miranda warnings here. A few weeks after giving Wright his Miranda warnings, the detective once again had occasion to administer those warnings, this time to Lorinzo Dixon. Once again he dropped the ball, telling Dixon:
What I'm gonna do first is read your rights to you. Okay? You have the right to remain silent. If you give up your right to remain silent, anything you say can and will be used against you in a court of law. You have the right at any time to request a lawyer, if, ah, if you can afford it. Or if you're, or if the court finds out that you're negligent for it. Okay? You also at any time have the right to answer any and all questions. Do you understand those rights?
In its 2012 opinion the Court found as fact that the detective used the phrase "if you are diligent" when he administered the warnings to Wright. There is more than ample evidence to support this finding. The transcript of that interrogation prepared by the State Police reads "if you are diligent." The State has sought to characterize this as a "typographical error, " yet it stipulated to the accuracy of that transcript and Detective Mayfield also twice testified it was accurate. The Court itself has reviewed the videotape of the confession many times and finds that the detective used the phrase "if you are diligent." In a sense this is much ado about nothing because even if the detective used the phrase "if you are indigent" the warnings were flawed because he indisputably told Wright he could have a court-appointed lawyer "if the State feels . . . [you] need one." Nonetheless, the Court notes that, for the reasons the second part of the Analysis section below, the phrase "if you are diligent" in its own right is sufficiently misleading to negate the effectiveness of the warnings.
Because the application of the law of the case is an issue here, it is necessary to present more detail about the complex procedural history than might ordinarily be required. Perhaps the clearest way to do this is to summarize the salient procedural events in chronological order.
• Before his trial Wright moved before trial to suppress his confession, but did not assert the Miranda warnings given to him were inadequate. This Court found that Wright's waiver of his Miranda rights was knowing, voluntary and intelligent, and denied the motion to suppress. No argument was made about the adequacy of the warnings given by Detective Mayfield and there was no discussion of those warnings in the court's opinion.
• Wright was tried before a jury and convicted of murder and related crimes. This Court sentenced him to death.
• Wright appealed his conviction and sentence to the Supreme Court, which affirmed both in 1993.
• In 1994 Wright filed his first motion for post-conviction relief in which he challenged the adequacy of his representation at both the guilt and penalty phases of his trial. This Court found that Wright had effective representation during the guilt phase, but that his representation during the penalty phase was ineffective. It therefore granted him a new penalty hearing. The result did not change after the second penalty hearing, and Wright was again sentenced to death.
• In 1996 the Delaware Supreme Court affirmed the death penalty imposed after Wright's second penalty hearing. It also affirmed this Court's conclusion that Wright's counsel was not ineffective during the guilt phase of his trial.
• In 1998 Wright filed another motion for post-conviction relief. One of his claims was that that "he received ineffective assistance of counsel in conjunction with his 1992 trial and appeal." The basis for that claim was, in part, his trial counsel's failure to argue that his waiver of his Miranda rights was not knowing, intelligent and voluntary. There was no contention that the warnings themselves were inadequate. This Court denied Wright's motion. It did not have occasion to review the warnings actually given to Wright and did not do so in its opinion.
• Wright appealed the denial of his 1998 Rule 61 motion, and in 2000 the Supreme Court affirmed by judgment order this Court's 1998 denial of that motion.
• Wright was resentenced after the Supreme Court affirmed the denial of his motion for post-conviction relief and his execution was scheduled for May 25, 2000. Two weeks before his scheduled execution Wright filed a petition for a writ of habeas corpus in the federal court, and that court promptly issued a stay of Wright's execution.
• In 2003, while the federal habeas corpus matter was pending, Wright filed his third motion for post-conviction relief. This Court stayed any resolution of that matter pending ...