United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO SUPPRESS STATEMENTS BASED ON THE
FOURTH AND FIFTH AMENDMENTS
Oki Mollway, United States District Judge
Michael Walker is accused of having arranged for his
girlfriend, Ailsa Jackson, to kill his wife in their home on
a military reservation, while he was working the night shift
at an Army hospital.
the court is a motion to suppress Walker's statements
based on the Fourth and Fifth Amendments and Miranda v.
Arizona, 384 U.S. 436 (1966). See
Defendant's Motion to Suppress, ECF No. 147.
the Government has demonstrated by a preponderance of the
evidence that Walker was not detained for Fourth Amendment
purposes and not subject to custodial interrogation for Fifth
Amendment purposes until Agent Mitchell asked him about his
extramarital relationships, the motion to suppress statements
made before those questions is denied. That is, Walker's
statements before the subject of extramarital relationships
was raised at line 22 of page 49 of the transcript of the
interview on November 15, 2014, are not suppressed.
motion to suppress is granted in all other respects.
Specifically, the Government may not use Walker's
statements after Agent Mitchell's question appearing at
line 22 of page 49 of the transcript in its case in chief.
This ruling excludes from trial only slightly more interview
statements than the Government has itself conceded that it
will not use in its case in chief in light of law
enforcement's violation of Miranda. Nor may the
Government use Walker's statements beginning at line 25
of page 49 of the transcript for impeachment purposes. The
court suppresses these statements as involuntary. Similarly
suppressed and not usable at trial for any purpose, including
impeachment, are Walker's handwritten note and statements
relating to the note.
FINDINGS OF FACT.
court received oral testimony from Emily Partridge, Thomas
Sides, Jr., Charles Baker, Ian Mitchell, and Mark Pezel
during a hearing on July 28, 2017. The court finds all of
them credible. The court also has before it all exhibits that
were attached to the moving and opposing papers, which this
court received in evidence for purposes of the present
motion. The court heard argument on July 28 and 31, 2017.
effort to rule promptly on the merits and to avoid the burden
on the court's over-extended court reporters, and because
Walker's motion to suppress was heard shortly before the
trial date, the court did not request and therefore does not
have final transcripts of the live testimony, although the
court has “rough” unedited copies of those
transcripts. Therefore, in referring to that testimony in
these findings of fact, this court is unable to give exact
page and line citations to the testimony.
on the live testimony and the documentary and video record,
the court finds that the following facts are supported by a
preponderance of the evidence. The findings are identified by
letters of the alphabet for ease of reference in future
Early on the morning of November 15, 2014, Sergeant Walker, a
United States Army medic, called 911 to report that, having
just returned home after working a night shift at Tripler
Army Medical Center, he had discovered his wife, Catherine
Walker, dead in the second-floor master bedroom. The home was
located in the Aliamanu Military Reservation on Oahu.
Military Police, emergency medical personnel, Honolulu Police
Department (HPD) officers, and federal firefighters responded
to the call.
about 6:40 a.m., Officer Emily Partridge of the United States
Army Military Police arrived at Walker's house without any
sirens, mistakenly believing that she was responding to a DUI
call. After ringing the doorbell multiple times and banging
on the door, she heard someone running down some stairs,
yelling, “I'm here, I'm here.” Walker
then unlocked the front door. About ninety seconds had passed
from the time Officer Partridge had started ringing the
doorbell until Walker arrived at the door. While Officer
Partridge was banging on the door, her partner, who had been
patrolling the neighborhood, pulled up in the driveway but
did not walk up to the front door of the house.
Officer Partridge testified that Walker “was frantic,
but calm at the same time” when he opened the door. He
was on his cellphone, speaking to one of the command leaders
from his unit. According to Officer Partridge, Walker told
her, “She's up there. She's up there.”
Walker then led Officer Partridge up the stairs. Officer
Partridge pushed open the master bedroom door, which was
already ajar. From the doorway, with Walker standing behind
her, Officer Partridge saw a woman lying on her back on the
floor with one arm above her head and one to the side.
According to Officer Partridge, in the daylight, she saw
blood, which “appeared to look dry, but still moist in
this point, about four or five emergency personnel arrived
and went up the stairs past Officer Partridge and Walker to
begin life-saving procedures. Officer Partridge asked Walker
to go down the stairs and outside of the house, where she
planned to ask him for personal information. Walker responded
that he would be more comfortable sitting on the couch in the
first-floor living room; Officer Partridge allowed him to sit
there while she spent ten to fifteen minutes obtaining
information from him. Officer Partridge testified that Walker
rocked back and forth on the couch, repeating, “I
don't know what I want to do. I don't know what I
want to do.” Although he told Officer Partridge that he
had unsuccessfully performed CPR on his wife, Officer
Partridge noticed that he was “clean” and that
there was no blood on him or his clothing. At Officer
Partridge's request, Walker got his wife's ID from
her purse to help medical personnel identify her. While this
was happening, Staff Sergeant Green, Officer Partridge's
patrol supervisor, arrived.
about 7:00 a.m., Officer Thomas Sides, a United States Army
Military Police investigator, arrived and began to
“secure the scene and preserve evidence.” He
stationed Officer Partridge at the front door to monitor who
went in and out of the house, and he had another person do
the same at the back door of the house.
After she had gotten the information she needed from Walker,
Officer Partridge again asked Walker if he would go outside
so that law enforcement officers could process the crime
scene. Walker went outside and waited on the front porch.
Officer Partridge stood on the front porch as instructed and
wrote down the time and identity of people going in and out
of the house until about noon, when she was relieved of her
duty. Officer Partridge says she did not order Walker to stay
or remain on the porch and was not told to monitor his
movements. She testified that, even after Walker had stepped
onto the porch, she would later have allowed him to go back
into the house to use the bathroom.
around 8:00 a.m., a chaplain arrived at the house to meet
with Walker. Other members of Walker's chain of command
and HPD officers also arrived. According to Officer
Partridge, there were about three military police officers,
two HPD officers, and a traffic investigator standing outside
of the house in various areas of the street, sidewalk, front
lawn, and back area of the house. Officer Partridge was the
only one standing next to Walker on the porch. Officer
Partridge overhead Walker telling HPD officers that he had
had an argument over food with his wife the previous day
before he left for work. She also overheard him telling the
chaplain, who was speaking one-on-one with him on the front
porch, that he and his wife had been unsuccessful in trying
to have children, that this had made his wife very depressed,
that his wife had had thoughts of suicide, and that she had
been staring out of their bedroom window when he left for
work the prior evening, which had seemed “very
strange” to him.
little before 9:00 a.m., Special Agents Ian Mitchell and
Charles Baker of the Army's Criminal Investigations
Division (CID) arrived at Walker's house in an unmarked
CID Chevy Impala. Agent Baker testified that, when he first
arrived at the house, he saw Walker “being hugged by
somebody in his chain of command” on the sidewalk or
road. Agent Baker noticed that Walker was
“tearful” and looked “very upset.”
Agent Mitchell was part of the Special Victims Unit, which
handles sex crimes, but had been instructed by the General
Crimes Team Chief to help in the murder investigation at
Walker's house. His task was to interview Walker about
his discovery of his wife's body and to establish a
timeline of events leading up to her death. Agent Mitchell
began by going up to Walker on the front porch, shaking his
hand, and introducing himself. He then told Walker that they
needed to go to the CID office together to talk about what
had happened. Although Agent Mitchell could not recall the
exact words he used to convey this “need” to
Walker, it appears he did use language conveying some
necessity. He testified before the court, however, that if
Walker had not wanted to leave his wife's body, that
concern would have been accommodated. Agent Mitchell said he
would have done his best to gather any physical evidence at
the house and would have been content to schedule extensive
questioning at the CID office for later. That turned out to
be unnecessary. According to Agent Mitchell, Walker did not
hesitate or object, replying, “Okay.” Agent
Mitchell described Walker as appearing
“concerned” but “cooperative, ” not
“distraught to the point where he was
According to Agents Baker and Mitchell, Walker was not
arrested or handcuffed, and no weapons were drawn. They heard
no one imply or tell Walker that he was a suspect in his
wife's death. In fact, neither agent suspected at the
time that Walker had killed his wife.
Agent Mitchell pointed out the unmarked CID Chevy Impala and
walked with Walker to the car. The car had a police radio in
its front panel, but no cage separating the front and back
seats. Agent Mitchell sat in the back with Walker, behind
Agent Baker, who was driving. Walker opened the car door
himself and got into the car on his own. He was not patted
down for weapons.
drive to the Schofield Army Barracks CID office took about
thirty minutes. During the car ride, Agent Mitchell engaged
in small talk with Walker but did not discuss anything
related to his wife's death. At the CID office, the
agents entered through the front doors with Walker, not
through the back door that a CID agent would normally have
used with a suspect. In fact, according to Agent Baker, a
suspect would typically have been transported by Military
Police officers, not CID agents, and would have been
handcuffed. CID procedures required visitors to leave their
cellphones in a lockbox before heading into interview rooms.
Walker left his cellphone, which was not searched until
later, after he had consented to a search.
According to Agent Mitchell, Walker was led to an interview
room that was about six feet by ten feet and did not have any
windows. There were two chairs and a table, and an adjoining
restroom. One of the walls had what appeared to be an
ordinary mirror, behind which audio-visual equipment was set
up to record the interview. According to Agent Mitchell,
Special Agent Paul McNally and Captain Mahoney from the staff
judge advocate's office watched parts of the interview
through the mirror, unseen by Walker. Although Walker was not
expressly told that the entry door to the interview room was
unlocked, he saw Agents Mitchell and Baker freely going in
and out of the room without locking or unlocking the door
several times that morning. Only one agent remained with
Walker at a time, and there were periods in which Walker was
in the room alone.
Arrangements were made to get a change of clothing for Walker
and to provide Walker with housing pending the investigation
and processing of the crime scene.
approximately 11:00 a.m., Agent Mitchell began a videotaped
interview of Walker, the transcript of which is at
Government's Exhibit 6, ECF No. 157-6 (referred to
hereafter as “Interview Transcript” with page
references being to the typed page numbers in the upper
right-hand corner). Agent Mitchell told Walker that he was
Agent Mitchell began the interview by asking Walker if he was
willing to consent to a search of his on-post residence, his
person, his cars, and his cellphone. Agent Mitchell showed
and explained a consent-to-search form to Walker, who
acknowledged that he understood the form. See
Government's Exhibit 4, ECF No. 157-4, PageID # 943.
consent to search form states,
3. I have been informed by the undersigned USACIDC Special
Agent that an inquiry is being conducted in connection with
the following possible violation(s) of law: Undetermined
Death of Catherine Walker///
4. I have been requested by the undersigned USACIDC Special
Agent to give my consent to a search of my person, premises,
or property as indicated below. I have been advised of my
right to refuse a search of my person, premises, or property.
(If you do not give your consent, do not sign this
Id. Walker consented to the search requests and
signed the form. Id. Agent Mitchell then asked
Walker for the passcode to his cellphone, which Walker
provided. Agent Mitchell noted the passcode on the form,
id., then left the interview room.
Agent Baker entered the room to collect the clothing Walker
was wearing to test it for any trace evidence it might have
from Walker's reported performance of CPR on his wife
before Officer Partridge arrived. The agents had clearly
anticipated getting Walker's consent to collect physical
evidence from his person because a large brown sheet of paper
was already on the floor of the interview room for Walker to
place his clothes on. In a respectful and sympathetic voice,
Agent Baker directed Walker to remove every piece of clothing
he was wearing and to place each item on the brown paper. On
the video of the interview, Walker is shown completely naked
for a brief time until he put on other clothes.
Walker asked to use the restroom, which was connected to the
interview room such that he did not need to go out the door
of the interview room. Walker asked whether he should wash
his hands, and Agent Baker told him to “hold off”
on doing that until he had been completely processed. Agent
Baker collected Walker's clothing, took scrapings from
his hands and fingernails, and took his fingerprints. Walker
asked him, “Do we know how much longer?”
Interview Transcript at 13. Agent Baker responded,
“Well, here's the good. There's about a million
and a half people right now doing everything that they can
for you.” Id. Agent Baker then left the room,
where Walker remained alone for about thirty minutes.
about 11:49 a.m., Agent Mitchell came back to take a
“general statement.” According to Agent Mitchell,
the purpose of interviewing Walker was to establish a
timeline of events leading up to the discovery of
Walker's wife, to determine the last time Walker had seen
his wife alive, and to figure out the last time someone other
than Walker had seen her alive before Walker came home to
find her dead.
the course of being questioned, Walker mentioned that his
wife had cleaned the car, which had been broken into earlier
in the week. Walker said his wallet had been stolen then.
After about thirty-five minutes of questioning, right after
asking about Catherine Walker's activities, Agent
Mitchell switched subjects and said, “Okay. So, again,
I've got to ask the question. Were you having any type of
relationship outside of your marriage?” Interview
Transcript at 49. Walker responded, “Oh, I was
correlating with (inaudible) people.” Id.
Agent Mitchell said, “So -- so when you say
correlating, what does that mean?” Id. at 50.
Walker answered, “Talking back and forth. I did meet a
couple of people.” Id. Walker further
explained that he had started meeting random males and
females through Craigslist beginning in June 2013.
Id. He told Agent Mitchell that a couple of these
people had come over to his house when his wife was out of
town. Id. Agent Mitchell asked, “And these
were sexual relationships?” Id. Walker said,
“A couple of ‘em.” Id.
Agent Mitchell continued questioning Walker about these
relationships and his relationship with his wife. At one
point during this line of questioning, Walker stopped and
said, “I'm sorry, this is really hard” and
“Sorry. I'm having a hard time.” Id.
at 52. Agent Mitchell said, “I'm also a Christian,
you know. I judge not, lest ye be judged, you know what
I'm saying?” Id. Walker repeated that he
was “having a hard time.” Id. Agent
Mitchell stated, “Yeah. I understand. Absolutely. So we
-- we will -- we will get through this together.”
Id. He then told Walker, “We got to -- we got
to talk about these particular details because,
unfortunately, you've been put in the position now that
we have to -- we have to examine all this stuff, okay? You
know the deal. You've gone through those classes.”
Id. at 53. Agent Mitchell was apparently referring
to criminal justice classes that Walker had taken. Agent
Mitchell probed Walker about his relationships and later
asked if Walker knew someone who could have killed his wife.
Id. at 53-63. Walker responded, “No
idea.” Id. at 63.
about 12:40 p.m., Agent Mitchell proposed breaking for lunch
and offered to get some fast food for Walker. Walker told him
that he thought his “body's hungry” but that
he did not have an appetite and had not eaten since the night
before. Id. at 65. Agent Mitchell noted that Walker
could use the restroom. Agent Mitchell left, then returned
with some lunch for Walker and left him alone for about forty
minutes to eat his lunch.
about 1:54 p.m., Agent Mitchell came back to question Walker
and observed that Walker had not eaten much of his lunch.
Agent Mitchell again questioned Walker about the events
leading up Walker's arrival at home when he found his
wife dead. Several minutes later, Agent Mitchell noted,
“Okay. All right. Now, I've -- I've talked to
my -- my computer guys over here so we've got some
questions that we've got to really kind of flush out
here.” Id. at 74. He said that, based on
evidence found on Walker's cellphone, he had to advise
Walker of his Miranda rights. Agent Mitchell said,
“I'm willing to ask you questions specifically, and
the Army requires me to . . . have you sign this form before
we . . . ask those questions.” Id.
Agent Mitchell then presented Walker with a Rights Warning
Procedure/Waiver Certificate and advised him of his rights.
See Government's Exhibit 7, ECF No. 157-7,
PageID # 1053. Walker said that he understood his rights, and
Agent Mitchell asked him if he wanted a lawyer. Walker
responded, “Yes.” Interview Transcript at 78.
Although this “yes” was not said loudly, it was
said clearly. There is no evidence that Agent Mitchell did
not hear Walker's response, either from the videotape of
the interview or from Agent Mitchell's live testimony
before this court, when he could have told the court about
any problem with hearing Walker's response.
Notwithstanding Walker's clear request for an attorney,
Agent Mitchell did not stop questioning Walker. The following
exchange then occurred, with Walker covering his face with
his hand and crying:
Special Agent Mitchell: Okay. You -- you want a lawyer?
Walker: I'm sorry. If this --
Special Agent Mitchell: Yeah, okay. So here's the deal.
I've got to ask the question --
Walker: No. You know (inaudible).
Special Agent Mitchell: Right. Your -- your --your -- your
wife was stabbed, all right, and I need to ask whether --
whether or not you know anything about it, okay? In order for
me to do that, I have to -- I have to advise you okay? So do
you want to talk now, or do you want a lawyer now?
Walker: I don't want to talk now.
Id. at 78-79. Once again, Agent Mitchell was
undeterred by Walker's invocation of his rights. Agent
Mitchell said, “I've got to ask the question,
” indicating that he needed Walker to complete the
waiver of rights form so that he could do his job.
Id. at 79.
Although indicated as “inaudible” in the
transcript, at one point, the videotape shows that Walker
asked Agent Mitchell, “So you think that I did this to
her?” Id. Agent Mitchell responded that
“it's possible but we don't know” and
explained “[t]hat's why I've got to ask the
question.” Id. The use of words like “I
need to ask” and “I've got to ask”
echoes the references to necessity that Agent Mitchell used
in asking Walker to go to the CID station. Questioning
continued with Agent Mitchell asking Walker again if he
wanted a lawyer and if he would be willing to make a
statement without having a lawyer present. At this point,
Walker asked, “I can stop at any time?”
Id. at 80. Agent Mitchell told him,
“That's correct.” Id. Agent Mitchell
then told Walker that he needed to sign the form indicating
that he wanted to talk to Agent Mitchell.
interview continued until Walker again asked for a lawyer at
about 2:39 p.m. In the course of the forty or so minutes of
questioning between when Walker first asked for a lawyer and
when Agent Mitchell ended his questioning, Walker repeated
his earlier statement, see Id. at 79, that he did
not want to talk with Agent Mitchell, saying, “I
don't want to talk about this any more.”
Id. at 93. The questioning continued.
Agent Mitchell asked Walker more about his extramarital
relationships. He also asked him why his “bloody
fingerprint” would be on the knife found on the floor
next to his wife's body. Id. at 86. This court
has before it no evidence that such a fingerprint had indeed
been found. In response to Agent Mitchell's questions,
Walker suggested that his wife might have committed suicide.
Id. at 87.
Agent Mitchell then cautioned Walker at considerable length:
Right. There are certain points in our life that we look at
and when I look back, I say, okay, this was a crossroads in
my life; that had I made this decision differently, I might
have ended up somewhere different. Very rare -- it's very
rare in our lifetimes to know that you're at a certain
point in your life that can go either way, okay?
I'm a firm believer in being able to admit mistakes when
they happen, okay? Because what happens is if it doesn't
get admitted, then what -- it just bury -- you just bury
yourself in guilt, self-doubt, and reasons why you
couldn't say the truth, okay?
I don't personally understand sometimes why people will
simply take the easier way of not talking than when if they
can get it off their chest, there's some type of relief
there. I've seen it. I've talked to literally
hundreds of people every -- every year that I've been
doing this job, and I've been doing this job for over ten
You're at -- you're at a point here that you need to
understand that there are going to be some real hard
questions asked; and if you're not truthful about them
right now, then later on you're going to look back and
wish you were at least able to get your story and what really
happened in those scenarios out because once this train
starts rolling, it's -- it's very hard to stop and
try to come back around. It's kind of on a one-way street
and that's what we're heading right now.
So you get -- you get very few opportunities to tell the
truth right away. And I think you know what the truth is, and
sometimes it's difficult to talk about the truth. But
here in this room right now, I think you know more than what
you're telling me, okay? I've been doing it for a
long time, Mike. This is my job. This is my profession, you
I know that you've probably had a lot of self-doubt and
issues throughout your entire life, both between -- between
religion and finding yourself. A lot of guys go in the
military to try to get that discipline and that way -- way
ahead and to get that feeling of being out of ...