This is troubling on so many levels…

Murder interrogation legality at issue in hearing today

By BETH VELLIQUETTE : The Herald-Sun

bvelliquette@heraldsun.com

Dec 14, 2004 : 9:56 pm ET

HILLSBOROUGH — Orange-Chatham District Attorney Carl Fox may have an uphill battle today in convincing a judge that Carrboro police acted within the law when they used fake documents to obtain statements from a suspect, a local legal scholar says.

The question, Fox himself acknowledges, is whether the court believes the police unlawfully interrogated Andrew Douglas Dalzell by showing him fake documents before telling him he could remain silent and have an attorney present during questioning, known as Miranda rights. Dalzell is charged with second-degree murder in the death of Deborah Leigh Key.

“It’s whether what they did was tantamount to questioning and whether what they said to him was basically questioning,” Fox said.

Dalzell’s attorney, Orange-Chatham Public Defender James Williams, has filed a motion to suppress the statements Dalzell made while in the custody of Carrboro police officers, who had arrested him on charges of possession of stolen goods, obtaining property by false pretenses and financial identity fraud.

A hearing is scheduled this morning in Orange County Superior Court to determine whether the officers legally obtained the statements from Dalzell. If the statements are thrown out, there may not be enough other evidence to try him in the slaying of Key, who disappeared seven years ago.

Key’s body has not been found.

An affidavit with Williams’ motion states that when Carrboro investigators arrested Dalzell in September, they showed him a fake warrant charging him with first-degree murder, when in fact he wasn’t being charged with murder at all. They also showed him a fake letter purportedly from Fox that said he would definitely seek the death penalty against Dalzell unless he immediately told investigators where to find Key’s body.

Fox acknowledged Tuesday that he gave Carrboro investigators a piece of his office stationery before they went to arrest Dalzell, but said he did not ask them what they planned to do with it. Fox said he did not authorize them to sign his name on the document.

But while Fox said police faked his signature, the district attorney said he would not press charges against the officer or officers responsible.

“It’s not forgery in the true sense of the law,” Fox said. “There’s no criminal intent. It’s basically signing my name to a document without my authorization.”

Fox also said officers are allowed to use deceit while questioning suspects.

“I’m not saying specifically this letter, but, yes, officers can use deception to some extent,” Fox said.

There’s a strong argument that the conversation the officers had with Dalzell about the letter was interrogation, said Louis Bilionis, the Samuel Ashe Distinguished Professor of Constitutional Law at UNC.

“They don’t have to ask questions with question marks [for it] to be interrogation,” Bilionis said.

The police also should have given him the Miranda warning about self-incrimination and gotten his signature on a waiver before they began interrogating him, Bilionis said.

Other factors for Superior Court Judge Wade Barber to consider include timing, who questioned Dalzell, where it took place and Dalzell’s state of mind when he made the statements, Bilionis said.

Dalzell’s September arrest came after police learned that he was suspected of stealing merchandise and a credit card number while employed at Hungate’s, a hobby store in University Mall. Investigators drove to Stanley, where Dalzell was living, and served the warrants on him for those alleged offenses.

It’s normally about a three-hour drive from Stanley to Carrboro. Williams claims investigators questioned Dalzell during the drive and then continued the questioning at the Carrboro Police Department.

Williams claims in his affidavit that the investigators gave Dalzell his Miranda rights and had him sign a waiver only after he made a statement at the Police Department. Then they continued to question him and obtained additional statements, the affidavit said.

That could be another factor in the judge’s decision, Bilionis said. Depending on the circumstances, the statements Dalzell made before he was given his rights could be thrown out, but the statements he made after signing the waiver could be admissible.

The legality of the second statement will depend on a number of factors, including, again, time, place, who did the questioning and how closely linked the first and second statements were, he said.

Another issue will be whether Dalzell voluntarily signed the Miranda rights waiver. Surprising Dalzell with the fake warrant and the fake letter and convincing him he could be put to death if he didn’t immediately say where Key’s body was could make a good argument that the officers used psychological coercion, Bilionis said.

“A waiver can be involuntary if it’s the product of improper psychological coercion,” the law professor said.

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