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Munson v. State (11/18/2005) sp-5959
Munson v. State (11/18/2005) sp-5959
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| PAUL DAVID MUNSON,
| ) Supreme Court
No. S-10444 |
|
| ) |
|
Petitioner, | ) Court
of Appeals
No. |
|
| ) A-7694/A-
7723 |
|
v. | ) |
|
| ) Superior Court
No. |
|
STATE OF ALASKA, | ) 3AN-S99-
7945 CR |
|
| ) |
|
Respondent. | ) O P I N I O
N |
|
_______________________________ | ) [No. 5959 -
November 18,
2005] |
|
|
|
|
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton,
Judge.
Appearances: Cynthia L. Strout, Anchorage,
for Appellant. W. H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
MATTHEWS, Justice, dissenting.
I. INTRODUCTION
I. During a custodial interrogation, murder suspect Paul
Munson unambiguously declared that he wished to terminate the
interrogation. The investigator continued questioning Munson,
who subsequently confessed to his participation in the crime.
The trial court suppressed the confession. The court of appeals
reversed, finding that Munson had only ambiguously invoked his
right to remain silent, that an ambiguous request is insufficient
to invoke the right, and that a police interrogator has no duty
to clarify an ambiguous invocation of the right. Because we find
that Munson unambiguously invoked his right to remain silent, we
reverse the decision of the court of appeals.
II. FACTS AND PROCEEDINGS
A. Facts
On September 14, 1999 Paul Munson was charged with the
murder of Morgan (Wolfie) Gorsche. The state alleged that Munson
and three friends killed Gorsche in retaliation for allegedly
molesting a three-year old girl. On September 15 Munson was
arrested in Portland, Oregon by Anchorage police detectives
Joseph Hoffbeck and David Parker, who interviewed Munson at a
Portland police station before his extradition to Alaska. They
informed Munson of his Miranda1 rights and proceeded to ask him
questions about the murder. A few minutes into the interview, as
Detective Hoffbeck began to ask questions directly related to the
homicide, Munson expressed fear that a co-defendant, Samuel
Camanga, might learn of his discussion with the police, and he
indicated that he did not want to discuss the crime:
[Munson]: Whats gonna happen? Is
Sam gonna know Im saying this?
[Investigator]: Maybe Sams already talked
to me.
[Munson]: No, but . . .
[Investigator]: Eventually Sam is going
to know, yes . . . the answer
to that is yes. Everybody
. . . everybody involved is
going to know eventually . . .
yes they will.
[Munson]: Well, Im done talkin
then.
(Emphasis added.) Rather than ceasing the questioning at this
point, Detective Hoffbeck continued:
[Investigator]: Before you make a final
decision on that there . . .
play that tape there for him .
. .
[Munson]: You know whatll happen to me?
[Investigator]: Listen to this here . . .
[2 ]
Hoffbeck then played a recording, which had been surreptitiously
obtained pursuant to a Glass warrant,3 of Munson discussing the
killing with another co-defendant, Shane Clapper. After playing
the recording and attempting to persuade Munson that his fears
were unfounded, the investigator continued questioning Munson,
who eventually confessed to his participation in the murder and
implicated Sam Camanga as the person who actually shot Gorsche.
B. Proceedings
At an evidentiary hearing before Superior Court Judge
Michael L. Wolverton, Munson argued that his confession should be
suppressed because the state failed to honor his request to
remain silent. Judge Wolverton agreed with Munson, concluding
that he had attempted to invoke his right to remain silent when
he said Well, Im done talkin then, and that the investigator
violated this right by continuing the interrogation. The court
suppressed Munsons statements following his invocation of the
right to remain silent.
The state petitioned for review, arguing that
suppression was inappropriate because Munson had only equivocally
invoked his right to remain silent, which, it claimed, was
insufficient to trigger the states obligation to terminate the
interrogation or to clarify Munsons intent. The court of appeals
agreed.4 The appeals court first found that Munson had
ambiguously invoked his right to remain silent.5 Although the
trial court had made no such finding, the court of appeals
concluded that such a determination was implicit in the trial
courts description of what the police should have done after
Munson said, Well, Im done talkin then.6 The court then noted
that while Alaska law requires the police to clarify ambiguous
requests for counsel,7 the U.S. Supreme Courts more recent
pronouncement in Davis v. United States8 imposes no such duty on
police interrogators. 9 Citing a number of jurisdictions that
have construed Davis to also require an unambiguous invocation of
the right to remain silent,10 and reasoning that the right to
counsel is more rigidly observed than the right to silence,11 the
court concluded that the police have no duty to clarify an
ambiguous invocation of the right to remain silent, and it
reversed the suppression of Munsons confession.12 We granted
review.
III. STANDARD OF REVIEW
Whether Munson invoked the right against self-
incrimination protected by both the United States13 and Alaska
Constitutions14 presents a mixed question of law and fact that we
review using our independent judgment.15 We adopt factual
findings made by the trial court that are not clearly erroneous.16
In the absence of express findings, we must resolve disputed
factual issues in favor of the party prevailing in the trial
court.17 We review questions of law de novo,18 and adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.19
IV. DISCUSSION
A. Munsons Request To Terminate the Custodial Interrogation Was
Unambiguous.
Was Munsons statement, Well, Im done talkin then,
adequate to invoke the right to silence protected by the Fifth
Amendment to the Federal Constitution and article I, section 9 of
the Alaska Constitution? On its face, Munsons statement was
entirely unambiguous: He clearly indicated that he was finished
talking with the police. The state argues, as it did below, that
the context of Munsons comment showed that he was afraid of
retaliation by Sam Camanga not of incriminating himself. The
state reasons that Munsons request was therefore equivocal and
thus insufficient to trigger any duty by the police to honor
Munsons right to silence. The court of appeals agreed.20
We agree that the context of Munsons statement suggests
that he wanted to terminate the interrogation because he was
afraid of retaliation by Sam Camanga. But there was nothing
ambiguous about the statement itself; and an otherwise
unambiguous request to terminate a custodial interview does not
become somehow equivocal because it might be motivated by a fear
of retaliation.21 Indeed, Detective Hoffbeck testified that he
understood Munsons request as an attempt to cut off questioning
entirely, but that he did not consider this statement to be an
invocation of the right to silence because Munson did not express
his desire in a manner which required him to cut off questioning.22
Thus, we conclude that a reasonable officer in these
circumstances would have understood Munsons statement that he was
done talkin, without condition or qualification, to be an
unequivocal invocation of his right to silence. Though the test
is an objective one, we also note that the investigator testified
at the suppression hearing that he understood that Munson wanted
to stop at that point, and that his subsequent questioning
(despite Munsons request) was based on an incorrect understanding
of a suspects right to silence the investigator believed that he
had no duty to stop asking questions until a suspect asks to
speak with a lawyer or actually does not answer questions.
Moreover, the superior court made no express finding that
Munsons request was equivocal. To the contrary, the courts
comments at the suppression hearing strongly imply that Munsons
request was unambiguous.23 Because we conclude that Munsons
statement Well, Im done talkin then was an unambiguous request to
terminate the interview, the question is not whether Munsons
request was equivocal, but rather whether, in order for a suspect
to validly invoke the right to silence, it must be clear that his
reason for doing so is specifically motivated by a fear of self-
incrimination.
Because we find that Munsons request was unequivocal,
we decline to address whether the police have an obligation to
clarify an ambiguous invocation of the right to silence, and
whether the dual prongs of Miranda24 are entitled to differing
levels of protection. Instead, we focus on the core issue, which
is whether Munson had a right to remain silent even if his
unambiguous request to do so might have been motivated by
immediate fear of a co-defendant.
B. The Right to Silence Asserted by Munson Was Protected
by Both the Federal and State Constitutions, Regardless
of Munsons Subjective Fear of Retaliation.
We turn to the question whether a statement by a
suspect that he was done talkin is a valid invocation of the
right to silence if it was not clearly motivated by fear of self-
incrimination. If our answer is yes, then the police
investigators were bound by Miranda and its progeny to respect
that right; but if the request was not constitutionally-
protected, then the investigators had no duty to stop the
interrogation or to clarify Munsons intentions.
We begin our analysis with the words of the Fifth
Amendment to the United States Constitution and article I,
section nine of the Alaska Constitution, both of which guarantee
that no person shall be compelled in any criminal [case or
proceeding] to be a witness against himself. These simple words
form the basis of a criminal defendants rights to counsel and to
remain silent.25 While the core protection is a prohibition on
compelling a defendant to testify against himself at trial,26
Miranda and our own cases under the Alaska Constitution show that
this protection is enforceable in any setting where a suspect is
subject to custodial police interrogation.27 Indeed, because such
an interrogation is inherently coercive, Miranda laid down
concrete constitutional guidelines, which include the requirement
to give a defendant the four specific warnings that comprise his
so-called Miranda rights.28 The failure to provide proper
warnings or to obtain a waiver of those rights is generally
sufficient to exclude any statements obtained.29 This rule-based
approach establishes a bright-line standard for admissibility of
confessions;30 and the litmus test is not only whether the suspect
voluntarily made a statement,31 but whether his waiver of the
right to silence or to counsel was knowing and
intelligent.32 Although Mirandas requirements sweep beyond the
literal protections of the Fifth Amendment,33 the U.S. Supreme
Court has described Miranda as a constitutional rule.34
Miranda makes clear that a defendant can invoke his
right to silence and end the interrogation in any manner, at any
time prior to or during questioning.35 If a suspect in a
custodial interrogation
indicates in any manner and at any stage of
the process that he wishes to consult with an
attorney before speaking there can be no
questioning. Likewise, if the individual is
alone and indicates in any manner that he
does not wish to be interrogated, the police
may not question him. The mere fact that he
may have answered some questions or
volunteered some statements on his own does
not deprive him of the right to refrain from
answering any further inquiries . . .[36]
Subsequent decisions by the U.S. Supreme Court have
clarified the states duties when a suspect invokes his Fifth
Amendment rights. A defendant has the right not only to cut off
questioning entirely, but also to control the time at which
questioning occurs, the subjects discussed, and the duration of
the interrogation.37 Additionally, the police must scrupulously
honor[] a suspects invocation of the right to silence.38
No ritualistic formula or talismanic phrase is
essential in order to invoke the privilege against self-
incrimination;39 all that is required to invoke Mirandas
protections is a statement with sufficient clarity that a
reasonable police officer in the circumstances would understand
it to be an invocation of the suspects rights.40 To validly
invoke the privilege, the suspect must face some hazard of
incrimination, but this threshold requirement is met whenever the
answers elicited could support a conviction or might furnish a
link in the chain of evidence leading to a conviction.41
Thus, a proper invocation of the privilege against self-
incrimination under Miranda requires only three things: a
custodial interrogation,42 a statement that would reasonably be
understood as an invocation of the privilege,43 and the clear
possibility from the context of the interrogation that a
responsive answer might be dangerous because injurious disclosure
could result.44 Once a suspect makes an attempt to cut off
questioning entirely,45 his request must be scrupulously honored.46
In the face of an unequivocal invocation of those rights, police
interrogators have very limited discretion to inquire into the
defendants subjective intent because they cannot, even to clarify
a suspects intent, wear down his resistance and make him change
his mind.47 These principles convince us that a suspect in a
custodial interrogation can validly invoke his rights even if he
may be motivated by a reason other than preventing self-
incrimination.48 That is, so long as the suspects apparent
motives do not cast genuine doubt on his desire to stop
questioning entirely, then the issue of why he wants to do so is
constitutionally irrelevant: the officer must scrupulously honor
the suspects request.
The bright line rules articulated by Miranda and its
progeny exist precisely because it is inappropriate to require
the police to make difficult judgment calls about a defendants
underlying motivations for invoking his rights.49 It will not
always be apparent whether a suspect is attempting to cut off
questioning to prevent self-incrimination; or because he is
emotional, tired, angry, confused, frightened, or overwhelmed; or
because of a combination of reasons. And the cost of
clarification is simply too great: Not only would inquiry into
a suspects motivations prove a quagmire for police interrogators,
but it would radically diminish Mirandas protections. Almost
every invocation of the right to silence or to counsel could
contain some ambiguity on the suspects motives. If the police
were permitted to aggressively inquire into a suspects subjective
intent for invoking the right, the suspect could well believe
that his rights are illusory.50 While the context of Munsons
statement suggests that he was more likely afraid of Sam Camanga
than of incriminating himself, it was not for the interrogator to
speculate about Munsons motives because the request itself was
entirely unambiguous. The circumstances surrounding Munsons
interrogation demonstrate that this approach provides the
clearest possible guidance for applying the requirements of
Miranda and Mosley during a custodial interrogation.
The transcript of the interrogation shows just how
relentless an interrogator can be when attempting to clarify a
suspects invocation of his rights. From almost the moment
Munsons interrogation began, he was told that invocation of his
rights was irrelevant since the police already had evidence
linking him to the crime, including the tape recording in which
Munson acknowledged his presence when Gorsche was killed. After
reading Munson his Miranda rights, but before seeking a waiver of
those rights, Detective Hoffbeck laid out his case against
Munson.
[Interrogator]: Ok. Now having these
[Miranda] rights in mind now I
wanta ask you . . . I wanta
tell you basically a couple of
things that we . . . that we
know about.
[Munson]: Uhhuh.
[Interrogator]: And then at the end of
that there if you wanta talk
to us you can talk to us, OK?
[Interrogator describes the evidence the
police have collected, including the
incriminating tape of Munson discussing the
crime with a co-defendant.]
[Interrogator]: Ok? So we have all that
information about you . . .
the choice is up to you . . .
you wanta talk to us about it?
[Munson]: I have a question about
that. What happens to me if I
talk to you guys?
[Interrogator]: Whether you talk to us or
not, the same thing is gonna
happen to ya.
[Munson]: So if I dont say anything
. . . the same thingll happen
to me?
. . . .
So Im gonna go to jail?
[Interrogator]: Of course, yes, youre
going to go to jail.
[Munson]: And it doesnt matter if I
talk or anything? Right?
At this point in the conversation, Detective Hoffbeck
informed Munson that his cooperation could have an impact on how
a judge approached sentencing, and he began to ask questions
about the crime. Only when Munson began to answer his questions
did the investigator ask if he was willing to speak with him.
But when Munson attempted to revoke his waiver, and to assert his
right to silence, Detective Hoffbeck again tried to convince him
of the futility of remaining silent.
[Munson]: Whats gonna happen? Is
Sam gonna know Im saying this?
[Investigator]: Maybe Sams already talked
to me.
[Munson]: No, but . . .
[Investigator]: Eventually Sam is going
to know, yes . . . the answer
to that is yes. Everybody
. . . everybody involved is
going to know eventually . . .
yes they will.
[Munson]: Well, Im done talkin then.
[Investigator]: Before you make a final
decision on that there . . .
play that tape there for him
. . . .
[Tape playing in which Munson acknowledges
that he was present when Gorsche was killed.]
[Investigator]: Youve already said it . . .
[Munson]: I know but . . .
[Investigator]: So whats the point?
Youve already said it so . . .
Although the state conceded below that a defendant can
invoke his right to silence for any reason even a whim and the
police must respect his decision, the state nonetheless
maintains that Munson never invoked his constitutional rights
because his request was motivated by a fear of Sam Camanga and,
thus, equivocal.51 The state argued below that the investigator
clarified Munsons equivocal request by playing the recording of
his incriminating discussion with a co-defendant, and that
Munsons later confession demonstrated that his concerns were
allayed and his statements were voluntary. But the overall
impact of the investigators comments, as well as his specific
response to Munsons request to terminate the interrogation,
demonstrate the inherently coercive nature of a custodial
interrogation and reinforce the need for clear standards to
govern an interrogators conduct in the face of a suspects
invocation of his Miranda rights.
While it is the centerpiece of the states position that
Munsons request was equivocal, it is clear that Detective
Hoffbeck understood that Munson was trying to cut off questioning
entirely. Indeed, in his suppression hearing testimony, the
investigator never claimed confusion or uncertainty concerning
Munsons desire to stop the interrogation.52 Yet instead of
scrupulously honoring what literally was a present-tense,
unequivocal, unconditional attempt to cut off all further
questioning, the investigator brushed off Munsons decision and
insisted that Munson needed to make yet another decision a final
decision: Before you make a final decision on that there . . .
play that tape there for him . . . . The investigator then set
in motion a prepared playback of a surreptitiously recorded
conversation between Munson and a police informant; the playback
was apparently intended to persuade Munson that his decision was
wrong: that he might as well talk because the police had already
secretly recorded him, he was already exposed, and in the
investigators opinion he didnt need to be afraid in any event.
By the standard established in Rhode Island v. Innis, the
investigators tactic unquestionably amounted to further
interrogation.53
The court of appeals seems to have assumed that Munsons
desire to cut off questioning became equivocal because he
evidently acted for a specific reason other than the one
specified by the constitution: avoiding self-incrimination. Yet
this tacit premise does not hold up to scrutiny. Under Miranda,
a defendant like Munson does not need to radiate constitutionally
pure motives; he just needs to make a clear attempt to stop
questioning entirely. If his apparent motives do not cast
genuine doubt on what he wants (that is, to stop questioning
entirely), then the issue of why he wants it is constitutionally
irrelevant: the officer must scrupulously honor the defendants
clear attempt to cut off questioning entirely.54
To be sure, a defendant may not assert the right to
silence when the privilege against self-incrimination does not
attach to the questioning. But for purposes of determining
whether the privilege attaches, our case law requires us to pose
a situation-specific, not a motive-specific, question. We do not
inquire what reasons prompt the defendants refusal to speak; we
simply ask whether the states questions present a real risk of
incrimination:
To establish a Fifth Amendment claim,
parties invoking the privilege have the
burden of demonstrating a valid reason to
believe that their compelled statements might
incriminate them. This burden is not great:
To sustain the privilege, it need only be
evident from the implications of the
question, in the setting in which it is
asked, that a responsive answer to the
question or an explanation of why it cannot
be answered might be dangerous because
injurious disclosure could result.[55]
Miranda itself recognizes that custodial interrogation inherently
poses a sufficient danger of incrimination to sustain the
privilege. Here, Munson was subjected to custodial interrogation
and was read his Miranda rights. Because the interrogation
certainly placed him at risk of self-incrimination, the privilege
unquestionably attached. He had a right to invoke it by
expressing a clear desire to cut off the interrogation entirely,
regardless of his subjective intent in doing so.
Of course Munsons apparent motives would have been
relevant if the totality of circumstances surrounding the
interrogation, including his apparent motives, cast genuine doubt
on his desire to stop the questioning completely. LaFave
recognizes that sometimes, [d]epending on the surrounding
circumstances, even a statement which itself appears to amount to
an assertion of the right to remain silent (e.g., I aint saying
nothing) may be held to [be ambiguous or equivocal].56 But as
LaFave indicates, the ambiguity in these situations must arise
from contextual circumstances suggesting that the defendants
reluctance is much more limited than wanting to stop the
interrogation entirely.57 Hence, if Munsons apparent fear,
combined with other relevant circumstances, created a reasonable
appearance that his categorical announcement that he was done
talkin was merely a tentative decision or that it was fleeting,
conditional, or even concealed a true desire to be questioned
then certainly his attempt to cut off questioning might fairly be
characterized as ambiguous or equivocal.
But here, as already noted, the circumstances hardly
lend themselves to this characterization: Munsons announcement
itself unequivocally and unconditionally declared his decision to
cut off questioning; and the surrounding circumstances, including
Munsons apparent motive for stopping, left little room for
confusion. As noted, the investigator never claimed that he saw
anything equivocal, ambiguous, or conditional about Munsons
desire to stop questioning entirely. He understood that Munson
wished to stop the questioning58 but erroneously thought that he
was free to press on despite Munsons wishes unless and until
Munson formally invoked his Miranda rights by either asking for
counsel or by refusing to continue talking.59 Nothing in the
circumstances surrounding Munsons declaration, in Munsons
apparent motives for making the declaration, or in the
declaration itself gave the investigator any reasonable basis to
think that Munson was not making a final decision or that he was
trying to do anything other than what he expressly declared that
he wanted to do to cut off the questioning entirely. At this
point, Miranda and Mosley required the investigator to
scrupulously honor the request, and precluded him from simply
pressing on with his interrogation.
The investigators determination to ignore Munsons
request seems particularly unreasonable when considered in light
of the approach used in the interrogation leading up to Munsons
request. The investigator began the interrogation by reading
Munson his Miranda rights and asking if he understood them. But
instead of asking immediately whether Munson wanted to invoke
these rights, the investigator purposely delayed this question,
saying that Munson would receive the opportunity to invoke his
rights later, after the investigator provided some additional
information. He then began to give Munson information that by
any objective measure was bound to encourage cooperation, engage
him in discussion, and produce incriminating statements. The
additional information also created a considerable gap between
the reading of Munsons rights and his opportunity to invoke them.
In conducting the balance of the interview, the investigator
believed Miranda required him to stop the interrogation only if
Munson actually refused to talk or expressly invoked his right to
counsel; on appeal, however, the state takes a different
position. Despite the gap between the reading of Munsons Miranda
rights and his first opportunity to assert them, the state now
contends that Munson could invoke his rights only by making a
demand to stop talking that clearly drew a connection between his
desire to stop and his by-then-distantly read rights. But this
position would allow the competitive enterprise of custodial
interrogation to be carried a step too far.
Viewed against this backdrop, the investigators
perfunctory dismissal of the clear and unequivocal attempt to cut
of all further questioning, and his insistence on a new round of
interrogation before allowing a final decision, could easily have
convinced Munson that the investigator was determined to keep
pressing his interrogation and was bound to deny Mirandas
critical safeguard: Munsons ability to control the time at which
questioning occurs, the subjects discussed, and the duration of
the interrogation.60 Upon hearing the demand for a final
decision, any reasonable person in Munsons position would have
recognized that his Miranda rights were merely illusory because
the investigator had seized full control.
Miranda exists to protect the rights of the criminally-
accused in precisely these situations. An interrogator cannot
try to convince a suspect that his silence is futile; the police
cannot fail to honor a suspects request by refusing to
discontinue the interrogation . . . or by persisting in repeated
efforts to wear down his resistance and make him change his mind.61
Nor, as the prosecutor implied below, can Munsons confession be
deemed voluntary by the fact that he continued to speak with the
interrogators after the tape was played. As the U.S. Supreme
Court has emphasized:
Using an accuseds subsequent responses to
cast doubt on the adequacy of the initial
request itself is . . . intolerable. No
authority, and no logic, permits the
interrogator to proceed . . . on his own
terms and as if the defendant had requested
nothing, in the hope that the defendant might
be induced to say something casting
retrospective doubt on his initial statement
that he wished to speak through an attorney
or not at all. [62]
That Munson continued to talk with the interrogator in the face
of continued questioning does not diminish the validity of his
request. Munsons constitutionally-protected right to silence
attached as soon as he said Im done talkin, and at that point the
interrogator was bound to scrupulously honor Munsons request.
Such bright-line rules exist both to protect the accused as well
as to provide clear standards to guide law enforcement officers
and the courts.
The Sixth Circuit reached a similar conclusion in
McGraw v. Holland.63 Tina McGraw was sixteen years old when she
was charged as an accomplice to a rape.64 In response to a police
interrogators questions, she stated: I dont want to talk about
it, and she indicated that her reason for not wanting to discuss
the crime was because she didnt want to walk the streets and
get[] shot and killed for tellin. 65 The Sixth Circuit suppressed
the resulting confession in part because it found no support,
either in logic or in law, for the proposition that an otherwise
unambiguous expression of a desire to remain silent can somehow
become ambiguous if prompted by a fear of retaliation.66 That the
defendants fear was so apparent should have made it even more
clear that she really did not want to talk about the rape.67
We agree with the Sixth Circuit that an otherwise
unambiguous invocation of the right to remain silent does not
become ineffective merely because it appears to be motivated by
fear of retaliation.
V. CONCLUSION
Because Paul Munson unambiguously invoked his right to
remain silent, and because the police interrogator failed to
scrupulously honor this request, we conclude that Munsons
subsequent confession to the crime must be suppressed.
Accordingly, we REVERSE the judgment of the court of appeals and
REINSTATE the judgment of the superior court.
Statement of:
HOMICIDE S-PAUL MUNSON
Q = DETECTIVE HOFFBECK
D = DETECTIVE PARKER
A - PAUL MUNSON
Q. This is on file #99-46526. Todays date is September the
15th, 1999. This is DETECTIVE HOFFBECK and DETECTIVE PARKER
in Portland, Oregon, the time now is uh... approximately ...
and uh.. the time, local time is approximately 7:30 p.m. and
Ill be talking to Paul MUNSON in just a moment.
UM. _________
Q. Thanks.
UM. ______________
Q. OK.. Paul let me introduce myself to you.
A. OK
Q. Im DETECTIVE HOFFBECK .. Anchorage Police Department ..
A. Hi.
Q. This is DETECTIVE PARKER. Anchorage Police Department..
D. Same place..
A. Oh your mister.. Dave PARKER? Oh yeah..
Q. Paul you saw theres a tape recorder there running?
A. Uhhuh.
Q. And uh youve been arrested.. let me see a copy of that uh
warrant over there please.. you were arrested over at the
Viking Hotel here uh... oh probly about an hour or so ago
now, cause the time now is .. I got about Uh 20 minutes to 8
Portland time. Gonna show you an arrest warrant for your
arrest, Paul.. are you Paul MUNSON, date of birth of 12-21
of 81?
A. Uhhuh.
Q. OK. Read English are you Paul?
A. Yeah.
Q. OK. Let that read there for ya ...
A. Murder one..
Q. Conspiracy to commit murder one.
A. Yeah.
Q. OK. So basically uh youre charged with murder in the first
degree and conspiracy to commit murder in the first degree.
Your bail is set at $500,000 cash only. And defendant may
not be released until court approves a third party custody.
This is an Alaska warrant. Obviously you know were not in
the State of Alaska.
A. Uhhuh.
Q. Were in the sate of Wash.. or Oregon. OK? We have to
follow not only Alaska laws, but the Oregon laws, OK?
A. Uhhuh.
Q. But the first thing is since youre in this room.. uh that
just indicates in our computer that youre mother reported
you as a runaway also. Paul, I want to uh, I wanta talk to
you about some things.
A. Uhhuh.
Q. I wanta talk to you about the homicide that took place up in
Anchorage, is what I wanta talk to you about. Before I can
talk to you about anything.. ______ youre well aware of what
I have to do. I have to read you your Constitutional
Rights.
A. Yeah.. Yeah..
Q. That there. Im gonna read those there to you in a few
minutes here.. but before .. when I get finished here even..
before you even start to say anything at all.. theres a
couple of things I wanta say to you before.. before that
goes on there, OK? OK.. You have the right to remain
silent, do you understand that? Paul?
A. Yes.
Q. OK. Anything you say can and will be used against you in a
court of law, you understand that?
A. Uhhuh.
Q. You do?
A. Yeah.
Q. OK. Now the tape recorder doesnt pick up some times when
you nod so..
A. Oh OK.
Q. So if you say it, Id appreciate it ..
A. Huh..
Q. You have the right to talk to a lawyer and have him present
with you while youre being questioned if you under. Do you
understand that?
A. Yes.
Q. OK. if you cannot afford to hire a lawyer, one will be
appointed to represent you before any questioning if you
wish one, do you understand that?
A. Yeah.
Q. OK. Now keep in mind here, all these questions. If you
have any questions about any of these here, please ask me
about em, OK?
A. OK.
Q. You can decide at any time to exercise these rights and not
answer any questions or make any statements.
A. Yeah I know..
Q. You understand .. you understand that?
A. I .. uh uh(?)
Q. OK. Do you understand each of these rights as Ive explained
them to you?
A. Yes...
Q. OK. Now having these rights in mind now I wanta ask you...
I wanta tell you basically a couple things that we.. that we
know about.
A. Uhhuh.
Q. And then at the end of that there if you wanta talk to us
you can talk to us, OK? One..let me lay out some .. Just
some basic, basic things to you..Im not gonna tell you
everything that I have right now ... and I think you probly
know a lot of the things I do already have. First of all I
have your car in custody. That was the car that was used to
transport Wolfie out to Eklutna. OK? Weve already search
the car and we found a ton of evidence already in that car.
Weve already located the shell casing that was found out
there, and weve matched it up to the gun that your friend,
Sam used to shoot him with, alright? Weve already done all
those type of things. Weve already got statements from uh..
weve got statements from Bryan, course you already knew that
there. And weve also got statements from somebody else, and
Ill let you hear about those in just a few minutes here, OK?
A. Nn.
Q. And on those statements there that Im gonna let you hear,
youre gonna hear you own voice on there, because we were
listening to all your phone calls..
A. Ahh.
Q. OK? So we have all that information about you.. the choice
is up to you.. you wanta talk to us about it?
A. I have a question about that? What happens to me if I talk
to you guys?
Q. Whether you talk to us or not, the same thing is gonna
happen to ya.
A. So if I dont say anything.. the same thingll happen to me?
Q. Well, lets put it this way here Paul ... when we are
finished speaking, whenever that is.. whether its in 5
minutes or if its in a half hour or whenever it is, youre
going to go to a uh.. a juvenile facility here in.. in
Oregon.
A. Uhhuh.
Q. And then tomorrow youre probly... I think the Oregon law is
that youre goin be brought before some type of a hearing at
that time.. to find out how you wanta go back to Alaska.
Whether youre going to volunteer to go back to Alaska or be
extradited to go back to Alaska.
A. Uhhuh.
Q. And then youll be.. once those hearings are over and if its
granted then youll be taken back to Alaska at that
particular time.
A. So whatll happen to me in Alaska?
Q. Youll be held accountable to answer to those charges of
murder in the first degree and whats the other one there
uh..
D. Conspiracy to commit murder..
Q. And uh conspiracy to commit murder in the first degree..
youre going to be held accountable for those.. if.. youre
charged with those.
A. So Im gonna go to jail?
Q. Of course, yes, youre going to go to jail.
A. And it doesnt matter if I talk or anything? Right?
Q. Well that.. thats up to you yknow ... its really up to you..
let me give you kind of a uh.. of a scenario about something
here.. now keep in mind when I read there, no promises or
threats are being made to you here... if you were sitting up
on a bench and a judge _______ right?
A. Uhhuh.
Q. This is just a thought here, if you were sitting up there,
and you had two people come in front of you.. one was being
cooperative and the other one wasnt.. how would you feel
about that?
A. Uh.. Id wanta be the cooperative one..
Q. Im not tellin you what to do.
A. I.. I know but I ... see..
Q. And I wanta ask you some questions about what happened out
there that night. Why.. actually I wanta know why in the
world you of all people, went out there with em.. it
befuddles me to know that there.. I can understand why the
other ones went out there, but Id like to hear what you got
to say about it. And only you can tell me about that. No
one else can read your mind, but thats your choice.. maybe
its a simple answer, maybe its a complicated answer. Maybe
you think its something to do with your home life. Maybe
its something to do, you got caught up with that night..
yknow? I dont know.. I dont know.. Show you a list of
names, Im sure you could recognize a lot of those names..
Those are the names of the people weve already talked to..
You wanta look at that again?
A. Yeah. Is this all of em?
Q. No, that aint all of em.. Thats just the list that Im..
showing you right there at this time.. why did you go out
there that night? Somebody threaten you to go out there?
A. No. I dont know why we went out there..
Q. Maybe you dont know why we went out there, but why did you
go out there?
A. Why did I go out there?
Q. Yeah.
A. Cause I had the car.
Q. Your car..
A. That was it..
Q. Now earlier in the night.. you willin to have this
conversation with me?
A. Uhhuh.
Q. OK. Thats a yes, right?
A. Yes..
Q. OK. Earlier on in the day time when you guys were drivin
around, you and Sammy and uh.. and Shane, Bryan, Jack ...
drivin around uh.. the subject of killin Wolfie came up many
times.. even went over and met the niece. The little girl
that was molested. The subject of uh mutilating Wolfies
hands and uh cutting his fingers off.. murdering him..
A. I didnt say one thing..
Q. Well, I dont know, you tell me what happened .. I wasnt in
the car. I wasnt in the car Paul. DETECTIVE PARKER wasnt
in that car .. its.. how old are you now?
A. Seventeen
Q. Youll be 18 .. uh.. December?
A. Yeah
Q. You got a long..long life ahead of you.. where you spend it
ats.. I dont know where youre gonna spend it at.. the .. the
manner of... what went on in the car there and the
conversations that took place out at.. uh.. out at Point
Woronzof and the apartments up in uh.. your apartment up in
Mt. View..
A. Uhhuh.
Q. Um, Id like to hear em..
A. What do you want know?
Q. Well, its your story.. why dont you start at the beginning
of it and tell me the story..
A. Well..
Q. How about.. how about when you first .. did you ever go, do
you know uh, do you know these people? do you know uh..
A. Know everybody on the _______ sheet.
Q. Huh?
A. I said I know everybody on the _____ sheet..
Q. On this uh yellow sheet theres a Cherylin MITCHELL, Joanna
PFEIFER uh Lynette.. Brandi.
A. Uhhuh.
Q. Uh Jack RUTHERFORD, Bryan RUTHERFORD .. Souvang, Khamkeo..
Sommith, Paul of course, and Sam. You know all those names?
A. Yeah.
Q. Tell me how you uh.. how you got to know uh Sam? Lets start
with that one there?
A. Uh.. me and Shane met him at a party.. and he.. he was.. he
was uh.. uh.. I guess .. cousins of whatever with Eddie..
the other roommate.
Q. Yeah.
A. And then he became our roommate, and thats how we _________
Q. Where were you living at the time uh.. Paul?
A. My house..
Q. And thats over there in uh Jewel Lake?
A. Yeah.
Q. You and your mom?
A. Yeah.
Q. Anybody else living there with you?
A. Huh-uh
Q. You had your own car at that time?
A. Yeah.
Q. What kinda car did you have?
A. Honda Civic
Q. You by chance remember the license number of it?
A. No, I have no clue.
Q. OK. Is that uh.. what year is it?
A. 90.
Q. What color is it?
A. Black, four door sedan.
Q. OK. You call it black?
A. Uhhuh. .. Or gray or..
Q. Yeah.. with a .. yeah.. would it surprise you the
registration says gray on it?
A. Yeah.
Q. OK. Wheres that car.. where do you think the car is at now?
I just told you where its at.. but where did you think it
was at?
A. Well I knew it got impounded.. because I got pulled over
with it.
Q. Right, your mom had it moved to some place and then it was
taken some place else..
A. Yeah I . .when she..
Q. Then the police..
A. The last time I saw it was at Polaris..
Q. OK.
A. That was the last time I saw it.. So I ..
Q. And that was.. when was that?
A. Oh I dont know..
Q. That was the night after the murder wasnt it?
A. Nn-nn(Negative) .. no it wasnt.
Q. It was about 1:15 in the morning the following night.. is
when it was..your car broke down there and uh two patrol
officers came by and ... I think they gave you a citation
for curfew and took you home?
A. Huh-uh.. they didnt give me a curfew ticket.
Q. They didnt give you one? OK.. Thank you for clearin that
up, I was under the impression you did.. gave you a ride
home though did they?
A. Uhhuh.
Q. OK.. so then thats how you met Sam, right?
A. Yeah.. ___________
Q. Do you remember when that was?
A. N, I had..not good with dates. I dont know.
Q. Give me, give me approximation, do you? Approximately when
it was? Im not gonna hold you to the date on that..
A. I dont know, like a month.
Q. So maybe this is the ... 15th of um... September .. so ..
more than a month ago now?
A. Yeah. .more. .more than a month.
Q. Like first part of August or..
A. I guess.. I dont..
Q. Would that be about right though?
A. I dont know.. well it was before school started..
Q. Well that was the end of uh.. end of August so..
A. I know.. before school.
Q. Did you.. so then you eventually you moved over to the ..
A. No, I was always there.. I .. .I always been over there,
like every.. before he was there..
Q. Before Sam moved in?
A. Oh yeah.. I was there all the time.
Q. You and uh Shane and uh..
A. Yeah.. thats how..
Q. And Eddie?
A. Me and Shane were there together.
Q. Uhhuh. .. want some water?
A. No, no thanks.
Q. OK.
A. Thats how we got there..
Q. OK. What um.. when did the gun start showin up? After Sam
showed up?
A. Well.. I ..
Q. Or were they there.. or were they there before that.. before
Sam showed up?
A. There was none there before.. I ... they.. they kept on say
that there was guns in the house yknow.. and theyd(?) fire
em, but there never was, cause me and Shane tried to check
yknow where they were.. where he said they were.
Q. Uhhuh.
A. But I dont.. the first time I saw em was uh... cant remember
... First time I sawem was... we were outside, outside the
apartment.. it was Shawn(?)
Q. Is that when one of the drive-bys came by or suum.. and the
shooting started?
A. No, that was . .that was just.. it was just the first time..
that Vi came over and there and they were..
Q. Who brought em over?
A. Sam
Q. Sam brought em over? How many did he bring over that time?
A. What?
Q. Guns..
A. I saw one..
Q. What uh.. what was that?
A. Think it was the 9 mm .. or was .45, I dont know.
Q. Well, both of those type show up there so.. which one is the
first one, do you remember?
A. I think it was the .45.
Q. .45?
A. Uhhuh. Whats gonna happen? Is Sam gonna know what Im
saying this?
Q. Maybe Sams already talked to me.
A. No, but..
Q. Eventually Sam is going to know, yes.. the answer to that is
yes. Everybody.. everybody involved is going to know
eventually.. yes they will.
A. Well, Im done talkin then.
Q. Before you make a final decision on that there.. play that
tape there for him..
A. You know whatll happen to me.
Q. Listen to this here... not what you think is going to..
Tape playing within a tape:
UM. ___________ I dont know dude.. uh dude.
UM. Alright I ... I have some questions I have, because Im just
trippin about this whole thing.. did you see Wolfies freakin
head explode when Sam shot him?
UM. Yeah.
UM. You did?
UM. Uhhuh
UM. Because Im just.. cause I .. I looked away and I looked up
at Bryan and Im just tryin to figure out whats happenin and
everything..
UM. So you didnt see _________ there?
UM. No.
UM. I was watchin _______ the whole time.
UM. You were watchin?
UM. I was there.. yeah I watched the whole thing. I wasnt too
far away..
UM. You were like pretty close to Sam huh?
UM. ___________ Yeah.. when whend you dream about dude?
UM. Just about.
Q. Youve already said it..
A. I know but..
Q. So whats the point? Youve already said it so..
A. You dont.. you dont understand ...
Q. What do I dont understand?
A. All those people.
Q. What do you think? What do you think that I dont understand
..
A. You dont..
Q. No, no.. youve got something in the back of your mind that
you think youve magnified.. Sam has got you runnin scared
about something .. you think is going to happen.. Im tellin
ya.. you think is gonna happen.. let me tell you suum whats
really gonna happen. nothins gonna happen.. Aint a dang
thing gonna happen.
A. How do you know that?
Q. I been doin this for about 30 years.
A. Uhhuh.
Q. Right? Its never happened .. it dont happen.. only in your
figment of your imagination does it happen. Because .. and
you know why.. they do this.. people like Sam.. say that
there.. to keep you quiet, thats the only reason.. Cause
when we get finished with talkin with Sam.. again here when
we talk to Sam and some more of these..
A. So have you already talked to Sam?
Q. Ive talked to Sam..
A. Can I hear his tape?
Q. No.. Sams not gonna hear your tape tonight either. No hes
not... next time you see Sam will be somewhere in some
hearing Alaska.. You have no reasons at all, because every
one of these people turn around and they all try to do the
best thing for themselves..
A. Let me ask you a question.
Q. You can ask any question you want..
A. You guys have Shane, right?
Q. You bet.
A. I thought so.
Q. You wanta ask some more questions and Ill tell you the truth
too, Im not gonna lie to anybody.. do I have Bryan? You
bet.
A. Oh I know you guys have Bryan..
Q. Do you wanta ask some more questions?
A. Is he in Fairbanks?
Q. Im aint gonna tell you where hes at..
A. No, I just.. I just..
Q. But the answer to thats no.
A. So you guys are the ones that had Shane call us.. Hnn..
yeah..
Q. Probly did. Does that make Shane a bad person?
A. No it dont.. I ... I..
Q. Shane goin in farther than you are..
A. Why?
Q. Shanes charged more than you are.
A. So Im the lightest?
Q. Yeah. Youre the light. youre the light weight of this
bunch.
A. Whats Shane and Bryan have?
Q. Bryans idea, wasnt it?
A. Yeah..
Q. Yeah.. it was his idea to do all this stuff.
A. _____________
Q. Shane was packin a gun that night and he drove the car.. and
as far as I know about Paul, he just provided the car..
A. Yeah.
Q. Right?
A. Uhhuh. Thats it.
Q. Thats it.. so whatd it sound like when you got out there?
A. What did what sound like?
Q. Whatd Wolfie have to say before he got shot? What was goin
. . . what was the conversation in the car out there, goin
out there?
A. Nothin. . it was just me and Shane and I wasnt really payin
attention . . . in the back. I was in the passenger seat. .
we were smokin weed.
[Transcript of interrogation continues for 54 pages.]
MATTHEWS, Justice, dissenting.
For the reasons expressed by the court of appeals I
believe that Munsons statement should not be suppressed. Because
the court of appeals opinion has not been published, I attach it
as an appendix. I have the following additional observations.
When Munson made his statement Well Im done talkin then
it was obvious that he was afraid of reprisals by his
accomplices. Officer Hoffbeck cautioned Munson to listen before
making a final decision to cut off the interview. Hoffbeck then
played a tape of a conversation between Munson and another person
that confirmed Munsons presence at the murder. After playing the
tape, Hoffbeck told Munson that his fear of reprisals was
unrealistic, based both on Hoffbecks long experience as an
investigator and the fact that all the actors were in custody.
Munson seemed to have been persuaded, asked a few questions about
the other participants in the crime, and permitted the interview
to continue.
On a common-sense level, what Hoffbeck did seems
reasonable. It was responsive to Munsons concerns1 and not
coercive, hostile, or repetitive. It did not suggest that Munson
was not free to refuse to speak further about the crime. Because
all of this seems to me to be beyond dispute, I have a hard time
accepting my colleagues conclusion that Munsons Miranda rights
were violated.2
To put the matter in a legal framework, it seems to me
that Munsons statement was an equivocal assertion of his Miranda
right to silence that the police were not required to understand
as terminating the interrogation. As the courts opinion
acknowledges, the general rule is that a suspect must articulate
his desire to cut off questioning with sufficient clarity that a
reasonable police officer in the circumstances would understand
it to be an invocation of the suspects rights; equivocal or
ambiguous assertions are not enough.3 This standard was
initially developed in Davis v. United States to evaluate
ambiguous assertions of the right to counsel by suspects
undergoing station-house interrogation.4 According to Davis, if
a suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might
be invoking the right to counsel, our precedents do not require
the cessation of questioning.5 The United States Supreme Court
has not said whether Davis applies to the Miranda right to
silence, but several federal courts have applied Davis in this
context, and I agree with todays opinion that this is the proper
approach here.6 The standard is objective, and requires
consideration of all the circumstances surrounding the
declaration to determine its meaning.7 Further, whether a
statement is an objectively unambiguous assertion of a Miranda
right is a question of law for the reviewing court, at least
where (as here) there is no dispute as to the underlying
historical facts.8 These legal principles are consistent with
Alaska precedent,9 and appear to be common ground between me and
the opinion of the court.
But we part company with respect to the courts
treatment of Munsons statement Im done talkin then, in particular
as to the issue of whether it is proper to consider Munsons
reasons for making this statement. Miranda was devised in order
to implement in a police interrogation setting the right not to
be a witness against oneself and the right to counsel. But a
suspect may refuse to speak for any number of reasons having
nothing to do with these rights emotions such as fear of
reprisals, anger, hostility, and distrust may underlie a refusal
to speak. Refusals based on emotions such as these, if persisted
in, must be honored,10 but when initially made they are often
properly regarded as only ambiguous or equivocal assertions of
the right to silence.11 A signal that the speaker would like to
stop talking can appear unambiguous in form, yet the context can
make it reasonable to understand the statement as something less
than a clear invocation of the right to silence. Depending upon
the surrounding circumstances, even a statement which itself
appears to amount to an assertion of the right to remain silent
(e.g., I aint saying nothing) may be held not to have that
effect.12 For example, a statement that seems like a simple
request to stop the interrogation may be legitimately understood
as merely expressing an objection to some aspect of the
interrogation, such as an objection to the person conducting the
interrogation or the use of a tape recorder.13 Or refusals to
continue speaking that are based on emotional or practical
objections such as fear of reprisals or anger at the way the
interrogation has proceeded that have nothing to do with fear of
incrimination can properly be viewed as temporary or provisional.
In these situations the speakers motive is relevant, and courts
have refused to find a clear invocation of the right to
silence.14
I do not question that a suspect can assert a right to
silence in a police interrogation context when the suspect is
motivated by a fear of reprisals, or even where the suspect has
no articulable reason at all for keeping silent. But I do think
that, where the suspects reluctance to speak is plainly based on
concerns unrelated to self-incrimination, and where these
concerns might be met by the police in a way that does not
overpower or belittle the suspects fundamental right to silence,
the suspects initial objection to speaking should not normally be
understood as an unambiguous assertion of the right to silence
sufficient to cut off further inquiry.15 The key is that police
attempts to meet the objection (until and unless they are met
with a clear indication that the suspect is hostile or
indifferent to these attempts) have little potential to suggest
that the right against self-incrimination is illusory.
This case is an illustration of the foregoing. Munson
was given a Miranda warning and was willing to waive these
rights. What caused him to make his done talkin then statement
was unrelated to these rights. In context a fuller expression of
what he said would be Well Im done talkin then because I am
afraid that if I do talk I will be killed by Camanga. Since
Munsons statement implies a continued willingness to talk if the
fear motivating the refusal could be put to rest, I believe the
statement should be construed as a merely equivocal invocation of
the right to silence.16 Put in Davis terms, given the turn the
interrogation had taken when Munson said he was done talking, a
reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking his right
against self-incrimination, as opposed to the clear and
unambiguous invocation required to shut down all questioning.17
Once a statement is found to be equivocal, all that
should ultimately be required in response to it is noncoercive
conduct that does not imply that the right to silence has been
lost and may no longer be exercised.18 That test too would be
readily met in the present case.
For these reasons I would affirm the decision of the
court of appeals.
NOTICE
Memorandum decisions of this court do not create legal
precedent. See Alaska Appellate Rule 214(d) and
Paragraph 7 of the Guidelines for Publication of Court
of Appeals Decisions (Court of Appeals Order No. 3).
Accordingly, this memorandum decision may not be cited
for any proposition of law, nor as an example of the
proper resolution of any issue.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-
7694
Petitioner, ) Trial
Court No. 3AN-S99-7945 CR
)
)
v. )
)
PAUL DAVID MUNSON, )
)
Respondent. )
)
PAUL DAVID MUNSON, )
) Court of Appeals No. A-
7723
Petitioner, ) Trial
Court No. 3AN-S99-7945 CR
)
)
v. ) MEMORANDUM OPINION
)
STATE OF ALASKA, ) AND JUDGMENT
)
Respondent. ) [No. 4494
November 21, 2001]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: W. H. Hawley, Jr., Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner and Respondent State of
Alaska. Cynthia L. Strout, Anchorage, for
Respondent and Petitioner Paul David Munson.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
The superior court found that Paul David Munson made an
equivocal statement about his right to silence during a custodial
interview with the police. The court suppressed the remainder
of Munsons statement because the police did not clarify Munsons
intent. We granted the States petition for review of that order.
Because case law provides that the police have no obligation to
clarify an equivocal statement about the right to silence during
custodial interrogation, we reverse the order of the superior
court suppressing a portion of Munsons statement.
We also granted Munsons petition for review of the
courts order that rejected his claim that his statement to the
police was involuntary. We uphold that order because we
conclude, as did the superior court, that Munsons statement was
voluntary.
Facts and proceedings
On September 14, 1999, the State charged Munson, Samuel
J. Camanga, Shane M. Clapper, and a juvenile for the September 1,
1999, homicide of Morgan F. Gorsche. On September 15, 1999,
Anchorage Police Detectives Joseph Hoffbeck and David Parker flew
to Portland, Oregon, to arrest Munson. After Munsons arrest,
Hoffbeck and Parker met with Munson at a Portland police station
and tape recorded their interview.
Detective Hoffbeck advised Munson of his Miranda
rights.1 Munson stated that he understood those rights. During
the interview, Munson admitted that he was involved in Gorsches
homicide. The grand jury indicted Munson and his cohorts for
first-degree murder,2 conspiracy to commit first-degree murder,3
and second-degree murder4 for the shooting death of Gorsche.
Munson moved to suppress his statement to the police,
claiming he had invoked his right to silence during the
interview. Munson also contended that his statement to the
police was involuntary because the police threatened him in order
to induce him to waive his rights and confess. Superior Court
Judge Michael L. Wolverton concluded that the police should have
clarified Munsons ambiguous invocation of his right to silence
Well, Im done talkin then. Because the police did not clarify
that statement but continued to interview Munson, Judge Wolverton
suppressed all of Munsons interview that followed that statement.
Judge Wolverton rejected Munsons claim that he had been
threatened and concluded that Munsons statement was voluntary.
Discussion
Did the police threaten Munson such that his statement
was involuntary?
Detectives Hoffbeck and Parker met with Munson in a
conference room at the Portland police station after Munsons
arrest. Detective Hoffbeck informed Munson that he had been
charged with first-degree murder and conspiracy to commit murder
and that his bail had been set at $500,000. Hoffbeck advised
Munson of his Miranda rights and asked if he understood each of
them. He then detailed the evidence that connected Munson to
Gorsches murder: evidence recovered from Munsons car (which was
used to transport Gorsche to Eklutna where he was killed); a
shell casing that matched Camangas gun; a statement from B.R., a
juvenile participant in the crime; and a statement from an
undisclosed witness, which turned out to be a recorded phone
conversation of Munsons. Detective Hoffbeck continued:
Hoffbeck: OK? So we have all that
information about you ... the choice is up to
you ... you wanta talk to us about it?
Munson: I have a question about that? What
happens to me if I talk to you guys?
Hoffbeck: Whether you talk to us or not, the
same thing is gonna happen to ya.
Munson: So if I dont say anything ... the
same thingll happen to me?
Hoffbeck: Well, lets put it this way here
Paul ... when we are finished speaking,
whenever that is ... whether its in 5 minutes
or if its in a half hour or whenever it is,
youre going to go to a uh ... a juvenile
facility here in ... in Oregon.
Munson: Uhhuh.
Hoffbeck: And then tomorrow youre probly
... I think the Oregon law is that youre goin
[to] be brought before some type of a hearing
at that time to ... to find out how you wanta
go back to Alaska. Whether youre going to
volunteer to go back to Alaska or be
extradited to go back to Alaska.
Munson: Uhhuh.
Hoffbeck: And then youll be ... once those
hearings are over and if its granted then
youll be taken back to Alaska at that
particular time.
Munson: So whatll happen to me in Alaska?
Hoffbeck: Youll be held accountable to
answer to those charges of murder in the
first degree and whats the other one there uh
...
Detective Parker: Conspiracy to commit
murder ...
Hoffbeck: And uh conspiracy to commit murder
in the first degree ... youre going to be
held accountable for those ... if ... youre
charged with those.
Munson: So Im gonna go to jail?
Hoffbeck: Of course, yes, youre going to go
to jail.
Munson: And it doesnt matter if I talk or
anything? Right?
Hoffbeck: Well that ... thats up to you
yknow ... its really up to you ... let me
give you kind of a uh ... of a scenario about
something here ... now keep in mind when I
read there, no promises or threats are being
made to you here ... if you were sitting up
on a bench and a judge ___ right?
Munson: Uhhuh.
Hoffbeck: This is just a thought here, if
you were sitting up there, and you had two
people come in front of you ... one was being
cooperative and the other one wasnt ... how
would you feel about that?
Munson: Uh ... Id wanta be the cooperative
one ...
Hoffbeck: Im not tellin you what to do.
Munson: I ... I know but I ... see ...
The discussion continued, and Munson described the
homicide and his participation in it. Judge Wolverton found that
Detective Hoffbeck had been candid in his testimony and that his
demeanor and approach during the custodial interrogation of
Munson had not been threatening or coercive. He concluded that
Munsons confession was voluntary:
I simply have to find under the circumstances
of this case that the scenario presented by
Officer Hoffbeck was nonthreatening and didnt
overbear Mr. Munsons will. I just dont think
it did. And I understand that the Supreme
Court may disagree with me as a legal matter,
but as it was posed, this is the problem that
I have with it. ...[I]ts one thing to say
... if you dont cooperate ... youre going to
get harsh treatment, so you dont have to talk
if you dont want to, but boy, youre going to
get treated harsher, as opposed to this
instance. And I really think this is the
truth of the matter, that Mr. Munson asked an
honest question, and ... [got] an honest
answer.
Munson contends that the scenario described by
Detective Hoffbeck was a threat. Munson argues that because the
scenario was a threat, the superior court should have applied the
presumption from Beavers v. State5 that any statement induced by
a threat is involuntary.6
In Beavers, two state troopers questioned Beavers in a
police vehicle outside the restaurant where Beavers worked.7
Beavers was sixteen years old at the time.8 The troopers told
Beavers that he was not under arrest, had not been charged with a
crime, and was free to end the interview at any time.9 While
questioning Beavers about his involvement in several robberies,
one of the troopers emphasized the importance of Beavers
cooperating and telling the truth.10 The trooper said:
I know that when youre young, you do some
stupid stuff, make a, make a wrong turn
somewhere, okay. And, and you do some crazy
stuff, okay? But, if youre, if you try and
hide it from me youre really going to get
hammered. I mean its, you gotta come out and
tell me the truth on this stuff, okay?[11]
The Alaska Supreme Court held that threat-induced
confessions are presumptively involuntary absent affirmative
evidence that the suspects will was not overcome by the
threats.12 The court concluded that Beaverss confession was
involuntary under this standard because the troopers statement
that Beavers would get hammered if he attempted to hide his
involvement in the robberies conveyed the unmistakable message
that Beavers would be punished for exercising his constitutional
right to silence.13 The court found no affirmative indications
that these threats had not overcome Beaverss will.14
In reaching this conclusion, the supreme court relied
heavily on the Ninth Circuits decision in United States v.
Harrison.15 Harrison, who was suspected of money laundering,
opened the door of her home to find some fifteen federal agents
with guns drawn.16 The agents searched Harrisons house and
arrested her and her companion.17 Harrison was advised of her
Miranda rights.18 Then, after a brief silence, an agent informed
Harrison of the evidence linking her to the crime and told her
she could face a 20-year sentence.19 The agent then asked her
whether she thought it would be better if the judge were told
that she had cooperated or had not cooperated.20 Harrison said
it would be better if she talked to the agents and they told the
judge she had cooperated. Harrison then confessed her role in
the crime.21
The Ninth Circuit concluded the police acted improperly
by suggesting to Harrison that they might inform the court she
had not cooperated.22 The court concluded that [a]lthough the
agents thinly veiled their implied message behind a rhetorical
question, Harrison could only conclude that she might suffer for
her silence.23 In reaching this conclusion, the Ninth Circuit
observed that police generally may suggest to a defendant that
cooperation could result in a more lenient sentence.24 And the
court acknowledged that suggestions to a defendant that
cooperation will result in a more lenient sentence and threats to
inform the prosecutor of the defendants refusal to cooperate are
simply different sides of the same coin: waive your rights and
receive more favorable treatment versus exercise your rights and
receive less favorable treatment. 25 But the court noted two
circumstances distinguishing threats from promises of leniency.26
First, a defendant may benefit from learning about the
possibility of a reduced sentence.27 Second, speculation that
cooperation will benefit the defendant, or even promises to
recommend leniency, generally are not sufficiently compelling to
overbear a defendants will.28 By contrast, there is no
legitimate purpose for the statement that failure to cooperate
will be reported.29 The supreme court recognized this difference
in Beavers: [We] agree with the Ninth Circuits distinction
between promises of leniency and threats of harsher treatment.30
Munson argues the threat in Harrison is nearly
identical to Detective Hoffbecks scenario. He claims the only
purpose of Hoffbecks rhetorical question was to suggest to Munson
that he would be punished for asserting his right to silence.
Thus, Munson argues the scenario was inherently coercive under
Harrison and Beavers.
We agree with Judge Wolverton that Detective Hoffbecks
scenario did not threaten Munson with harsher treatment if he
asserted his right to silence. As the State points out, Hoffbeck
did not threaten to inform the judge of Munsons non-cooperation,
as did the federal agents in Harrison.31 Nor did Hoffbeck
threaten that Munson would be treated more harshly than normal if
he did not cooperate, as was the case in Beavers.32 Rather,
Detective Hoffbeck presented a scenario that suggested
cooperation might work to Munsons benefit. The fact that a
benefit might flow from cooperation is not the equivalent of a
threat of harsher treatment in the event of non-cooperation.
Hoffbeck told Munson that he was not making a threat or promise
or telling him what to do. And at the conclusion of the
interview, Munson acknowledged that he had not been threatened.
Accordingly, Munsons confession was not presumptively involuntary
under Beavers.
Judge Wolverton also concluded that Munsons statement
was voluntary under the traditional totality of the circumstances
test. A confession is involuntary if an examination of all the
circumstances discloses that the conduct of law enforcement was
such as to overbear (the defendants) will to resist and bring
about confessions not freely self determined.33 In evaluating
the totality of the circumstances to determine whether a
confession was voluntary, we consider the age, mentality, and
prior criminal experience of the accused; the length, intensity
and frequency of interrogation; the existence of physical
deprivation or mistreatment; and the existence of threat or
inducement.34 The State has the burden to show by a
preponderance of the evidence that a confession was voluntary.35
When the accused is a juvenile this is a heavy burden of proof.36
We independently examine the record to determine the
defendants mental state and its legal significance and base our
conclusion on the voluntariness of the confession on the totality
of the circumstances surrounding the defendants statement.37 Munson argues
that the following circumstances show his confession was involuntary: he was
seventeen years old, under arrest, told he was charged with first-degree murder with
bail set at $500,000, and interrogated outside Alaska without a parent present. On
the other hand, Munsons interview lasted less than two hours. Munson had something
to drink and was offered crackers. There was no evidence that Munson was physically
exhausted. Detective Hoffbeck testified that Munson did not appear to be under the
influence of alcohol or drugs. Judge Wolverton found that Hoffbecks demeanor was
nonthreatening. And this was not Munsons first contact with police officers for a
serious crime; Munson previously had been interviewed by police and confessed to a
burglary of a record store in Anchorage. From our independent review of the record,
we conclude that Munsons statement was voluntary.
We next address a remaining point raised by the State.
The State claims that Beavers, which the supreme court decided
after Munsons interview with the police, should not apply
retroactively because it announced a new rule of law that a
threat-induced confession is presumptively involuntary. However,
this argument is moot because the scenario described by Detective
Hoffbeck was not a threat.
Did Munson invoke his right to silence?
Munson next claims he invoked his right to silence
during his interview with Detective Hoffbeck and therefore, any
post-invocation statements should be suppressed. In the
interview, Munson discussed the events leading up to the homicide
but became hesitant when the topic moved to Camangas involvement
with the guns.
Hoffbeck: Who brought [the guns] over?
Munson: Sam [Camanga].
Hoffbeck: Sam brought em over? How many did
he bring over that time?
Munson: What?
Hoffbeck: Guns ...
Munson: I saw one ...
Hoffbeck: What uh ... what was that?
Munson: Think it was the 9 mm ... or .45, I
dont know.
Hoffbeck: Well, both of these type show up
there so ... which one is the first one, do
you remember?
Munson: I think it was the .45.
Hoffbeck: .45?
Munson: Uhhuh. Whats gonna happen? Is Sam
gonna know Im saying this?
Hoffbeck: Maybe Sams already talked to me.
Munson: No, but ...
Hoffbeck: Eventually Sam is going to know,
yes ... the answer to that is yes. Everybody
... everybody involved is going to know
eventually ... yes they will.
Munson: Well, Im done talkin then.
Hoffbeck: Before you make a final decision
on that there ... play that tape there for
him ...
Munson: You know whatll happen to me?
Hoffbeck: Listen to this here ...
The officers then played a tape recording of a
conversation seized under a Glass warrant38 in which Munson
admitted watching Camanga shoot Gorsche in the head. Hoffbeck
pointed out that the tape recording showed Munson already had
admitted that he witnessed the murder and that Camanga was the
shooter. He also reassured Munson that Camanga would not
retaliate. The interview continued, and Munson continued to
describe his involvement in the homicide.
In the superior court, Munson raised a two-pronged
claim that he had invoked his right to silence. First, he argued
that he clearly invoked his right to silence and that anything he
said after that statement had to be suppressed. In the
alternative, he argued that if his invocation of his right to
silence was ambiguous or equivocal, then the officers were
obliged to clarify the ambiguity before proceeding with the
interview. The State argued that Munson had not clearly invoked
his right to silence but that his comment about silence was
equivocal because it expressed Munsons concern that Camanga would
learn that he had talked to police. The State also argued that
when a defendant makes an equivocal reference to the right to
silence, a police officer has no obligation to clarify the
reference. However, the State claimed that Detective Hoffbeck
clarified Munsons statement.
At the evidentiary hearing, Detective Hoffbeck
testified he did not believe Munson was exercising a Miranda
right to silence when he said, Well, Im done talkin then.
Instead, Hoffbeck thought Munson was expressing a concern that
Camanga would learn what he was telling the police and retaliate
against him.
Judge Wolverton found Detective Hoffbecks testimony on
the issue was honest and candid. But Judge Wolverton held that
Hoffbeck was required to clarify what Munson meant by his
statement Well, Im done talkin then by either reaffirming Munsons
waiver or by readvising him of the Miranda warnings before
continuing. Implicit in Judge Wolvertons analysis is his
rejection of Munsons claim that he had made an unequivocal
assertion of his right to silence. If Munson had made such an
unequivocal assertion, then no clarification would have been
needed; the interview should simply have ended.39
Judge Wolverton concluded that Detective Hoffbeck
mistakenly believed there was a distinction between a defendants
invocation of the right to silence and a request for counsel.
Judge Wolverton agreed with Munsons position that the law
recognizes no distinction between a defendants assertion of
either right.
Alaska law does require the police to clarify an
equivocal or ambiguous request for counsel. In Hampel v.
State,40 we noted that the case law divided into two generally
recognized approaches when a defendant made an ambiguous or
equivocal request for counsel:
Some courts, interpreting literally the
language in Miranda that the right to counsel
may be invoked in any manner, have held that
all questioning must cease upon any reference
to counsel, however ambiguous or equivocal.
The second approach is to permit a limited
inquiry for the purpose of clarification
after an accused makes a statement that
arguably might be construed as a request for
counsel.
In Giacomazzi v. State, 633 P.2d 218, 222
(Alaska 1981), the Alaska Supreme Court
implicitly rejected the first approach, while
approving of the second. In noting the
difficulty for a police officer in
determining whether a suspect indeed intends
to invoke his right to have an attorney
present, the court stated: For this reason,
the officer may seek clarification of the
suspects desires. Permitting clarification
of an accuseds request is necessary to
protect his rights without unduly interfering
with reasonable police questioning. This
approach avoids the rigid rule of prohibiting
further questioning upon any vague reference
to an attorney, while providing police and
the courts with a standard which protects the
rights of those who desire the presence of
counsel at questioning but whose requests
fail to meet an arbitrary threshold of
clarity.
We therefore follow the second, more
pragmatic, approach. In keeping with
Giacomazzi, we hold that when the accused
makes an ambiguous or equivocal reference to
counsel during a custodial interrogation, the
officer need not immediately terminate the
interrogation. Further questioning, however,
must be limited to clarifying the reference.
Thus, any questioning on the subject matter
of the investigation must be suspended until
the intent of the accused is clarified.[41]
The United States Supreme Court has since adopted a new
standard when an accused makes an ambiguous or equivocal
reference to counsel. In Davis v. United States,42 a closely
divided Court reasoned that if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only
that the suspect might be invoking the right to counsel, our
precedents do not require the cessation of questioning.43 The
majority stated: If the suspects statement is not an unambiguous
or unequivocal request for counsel, the officers have no
obligation to stop questioning him.44
Since this decision, courts have extended Davis to
cases where a suspect has made an ambiguous or equivocal
reference to the right to silence.45 Furthermore, in Hampel v.
State, we noted that the right to counsel is more rigidly
observed than the right to silence and that situations where a
defendant made an ambiguous or equivocal reference to his right
to silence were distinguishable from situations where a defendant
made an equivocal reference to the right to counsel.46 Several
Alaska cases supported that distinction. For example, in Vail v.
State,47 the supreme court upheld continued police questioning of
one co-defendant who had waived his Miranda rights but said that
he did not want to talk about his co-defendant.48 The supreme
court concluded that this remark was an ambiguous remark that was
not intended to cut off questioning entirely.49 In Pierce v.
State,50 we rejected a claim that the State had not shown that
Pierce had waived his rights.51 Pierce told the police that he
was not sure that he wished to waive his rights but continued to
answer questions.52 In Nashoalook v. State,53 we concluded that
a fair and common sense reading of the totality of Nashoalooks
interview with the police did not reflect an intent on
Nashoalooks part to cut off questioning entirely.54 Instead, we
concluded that Nashoalook was concerned that the interview was
being tape recorded and that others in his community would find
out what he told the police.55 Because the circumstances around
Nashoalooks refusal to answer questions were ambiguous, we
concluded that further questioning was not prohibited.56
Detective Hoffbeck testified that he concluded from
Munsons statement, Well, Im done talkin then, that Munson was
afraid Camanga would retaliate against him if he talked to the
police. Detective Hoffbeck stated he did not believe that Munson
was exercising his right to remain silent. Therefore, he
continued to talk with Munson to allay his concerns about
retaliation.
Judge Wolverton accepted Detective Hoffbecks testimony,
finding it to be candid and honest. Furthermore, an objective
reading of the transcript of Detective Hoffbecks interview with
Munson supports the conclusion that Munson was expressing fear of
retaliation rather than exercising his right to remain silent.
Under these circumstances, we conclude that Detective Hoffbeck
did not violate Munsons constitutional right to remain silent
when he continued to interview Munson after Munson made the
statement Well, Im done talkin then.
Conclusion
We AFFIRM the superior courts order that concluded
Munsons confession was voluntary. We REVERSE the superior courts
order suppressing the portion of Munsons interview after Munson
said, Well, Im done talkin then.
_______________________________
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 A transcript of the relevant portion of the interview
is attached to this opinion as an appendix.
3 See State v. Glass, 583 P.2d 872, 881 (Alaska 1978), on
rehg, 596 P.2d 10 (Alaska 1979) (holding that under Alaska
Constitution police must obtain judicial authorization before
surreptitiously recording private conversation).
4 State v. Munson, Mem. Op. & J., No. 4494 at 14-15
(Alaska App., Nov. 21, 2001).
5 Id. at 14.
6 Id. Judge Wolverton suppressed Munsons statement
because he concluded that an invocation of either the right to
remain silent or the right to counsel triggers a duty by the
police to clarify a suspects intent to exercise his right against
self-incrimination.
7 Hampel v. State, 706 P.2d 1173, 1180 (Alaska App.
1985).
8 512 U.S. 452, 461-62 (1994).
9 State v. Munson, Mem. Op. & J., No. 4494 at 15-17
(discussing development of state and federal law regarding
ambiguous invocations of right to counsel).
10 Id. at 16 n.45.
11 Id. at 17 (citing Hampel v. State, 706 P.2d 1173, 1179
n.4 (Alaska App. 1985)).
12 Id. at 19.
13 U.S. Const. amend. V.
14 Alaska Const. art. I, 9.
15 See, e.g., State v. Smith, 38 P.3d 1149, 1153 (Alaska
2002) (whether suspect in custody for Miranda purposes presents
mixed question of law and fact qualifying for independent review)
(internal quotations and citations omitted).
16 Id.
17 Id.
18 Id.
19 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
20 State v. Munson, Mem. Op. & J., No. 4494 at 19.
21 For more discussion on the effect of a suspects
subjective motivation on his custodial invocation of the right to
silence, see infra Part IV.B.
22 On direct examination at the suppression hearing, the
investigator acknowledged that he understood that Munson wanted
to stop at that point, but indicated his belief that he had no
duty to stop asking questions until a suspect asks to speak to a
lawyer or refuses to answer questions.
23 Our review of the transcript from the evidentiary
hearing convinces us that Judge Wolvertons comments are best
understood to indicate that an invocation of the right to silence
accords similar protections as an invocation of the right to
counsel, not that Munsons request was ambiguous.
24 Miranda v. Arizona, 384 U.S. 436 (1966) (Fifth
Amendment protection against self-incrimination grants to suspect
in custodial interrogation right to counsel and right to remain
silent).
25 Id. at 439; Beavers v. State, 998 P.2d 1040, 1045-46
n.25 (Alaska 2000); see also Dickerson v. United States, 530 U.S.
428, 435 (2000).
26 See, e.g., United States v. Patane, 542 U.S. 630, 638
(2004).
27 Miranda, 384 U.S. at 477; Beavers, 998 P.2d at 1045 &
n.25.
28 Dickerson, 530 U.S. at 435 (discussing Miranda, 384
U.S. at 442, 479).
29 Missouri v. Seibert, 542 U.S. 600, 608 (2004).
30 See Smith v. Illinois, 469 U.S. 91, 99 n.8 (1984).
31 Dickerson, 530 U.S. at 433-34.
32 Smith, 469 U.S. at 95; see also Edwards v. Arizona, 451
U.S. 477, 486 n.9 (1981).
33 United States v. Patane, 542 U.S. 630, 639 (2004).
34 Dickerson, 530 U.S. at 444.
35 Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
36 Id. at 444-45 (emphasis added).
37 Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).
38 Id. at 104. Cautioning against the absurd and
unintended results that could flow from unreasonably literal
interpretation of Miranda, the Mosley Court held that while
Miranda did not require the perpetual cessation of interrogation
after a suspect has invoked his right to silence, neither did it
permit a resumption of interrogation after a momentary respite.
Id. The Court did not define precisely what it meant by
scrupulously honor[ing] a suspects invocation of the right to
silence, but it found that Mosleys rights were fully respected
because, after he invoked his right to silence, the officer
ceased questioning him entirely and, after a delay of more than
two hours, Mosley was re-Mirandized by another officer and
interviewed about a separate crime. Id. at 104-06. The court
found these actions to be sufficient because it saw no evidence
that the police had failed to respect a request to cut off
questioning or had made repeated efforts to wear down his
resistance and make [the defendant] change his mind. Id. at 105-
06.
39 Emspak v. United States, 349 U.S. 190, 194 (1955).
40 Davis v. United States, 512 U.S. 452, 459 (1994).
41 State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993)
(quotation omitted).
42 Miranda, 384 U.S. at 477.
43 Davis, 512 U.S. at 459.
44 Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
45 Vail v. State, 599 P.2d 1371, 1378 (Alaska 1979).
46 Michigan v. Mosley, 423 U.S. 96, 104 (1975).
47 Id. at 106.
48 To the extent that this interpretation may be more
protective than federal constitutional law, we base our ruling on
article I, section 9 of the Alaska Constitution. See Beavers v.
State, 998 P.2d 1040, 1046 n.30 (Alaska 2000). While we have
observed that the language of 9 is virtually identical to the
wording of the Fifth Amendment of the United States Constitution,
Biele v. State, 371 P.2d 811, 813 n.6 (Alaska 1962), we have
interpreted 9 more broadly than the U.S. Supreme Court has
construed the Fifth Amendment of the Federal Constitution. Scott
v. State, 519 P.2d 774, 785 (Alaska 1974). In so doing, we noted
our responsibility to depart whenever necessary from
constitutional interpretations enunciated by the United States
Supreme Court and to develop rights and privileges under the
Alaska Constitution in accordance with our own unique legal
background. Id. at 783. We do so because [w]e are not bound to
follow blindly a federal constitutional construction of a
fundamental principle if we are convinced that the result is
based on unsound reason or logic. Id.
More recently, in State v. Gonzalez, 825 P.2d 920
(Alaska App. 1992), the court of appeals expressed hesitation to
blindly adhere to changes in federal constitutional law where
unexpected decisions of the Supreme Court have forced a serious
reevaluation of . . . fundamentals. Id. at 931 (internal
citations omitted). Ultimately, the court concluded that [t]he
United States Supreme Courts decisions interpreting the fifth
amendment do not decide the meaning of the Alaska privilege, and
similarity in language does not make the United States Supreme
Court the primary interpreter of article I, 9. Id. (The court
of appeals accordingly declined to adopt the Courts decision to
allow use and derivative use immunity to act as a substitute for
the privilege against self-incrimination or transactional
immunity. Id. at 936.)
49 Davis, 512 U.S. at 461.
50 See, e.g., Mallott v. State, 608 P.2d 737, 741-43
(Alaska 1980) (ignoring or rebuffing suspects invocation of his
rights will convince him that such rights are illusory).
51 We note that Detective Hoffbeck himself had a different
understanding of Mirandas requirements. He testified that, in
order to invoke his Miranda rights, a suspect must either ask for
an attorney or stop talking; but a suspects statement that Im
done talking, Ive got nothing more to say, or Im finished, I
quit imposes no duty on an investigator to stop asking questions.
While a more limited statement than Im done talkin then might
reasonably be construed as equivocal, i.e., to express an
unwillingness to speak with a particular interrogator or to
respond to a particular inquiry, 2 W.R. LaFave, et al., Criminal
Procedure 6.9(g) at 606 (2d ed. 1999), there is no basis to
interpret Munsons broad statement as anything but an
unconditional request to cut off all questioning.
52 On direct examination at the suppression hearing, the
investigator acknowledged that Munson wanted to stop the
interrogation, but indicated that he didnt view this as an
invocation of the Miranda rights; the only reason he suggested
for this view was that Munsons decision to stop appeared
motivated by fear:
Q. Okay. And there also came a point, and
I pointed it out to you where he
indicated that you were talking to him
about Sam Kamanga (ph) and the others
are going to learn basically what hes
saying. Do you remember that?
A. Yes.
Q. Okay. And do you remember what he said
in reply to that once he kind of learned
that Mr. Kamanga (ph) was going to learn
what it was that he was telling you?
A. He said that he didnt want to talk
anymore.
Q. Okay. And what did you take that as? I
mean, did you accept did you think that
he was invoking his Miranda rights, for
instance?
A. No.
Q. What did that mean to you when he said
that?
A. He wanted to stop at that point, I think
is what he I got the impression that he
didnt really want Sam to hear what he
had to say. And so at that point then
he says, no, I got nothing I dont I
want a I forget exactly the the words
he said. But I said, before you make up
your final mind, listen to what whats
on this tape here.
(Emphasis added.)
Returning to this issue in his cross-examination, the
investigator cemented the point that he hadnt seen anything
circumstantially ambiguous in Munsons desire to stop questioning,
but merely felt that Munson did not express his desire in a way
that required the investigator to cease the interrogation:
Q. . . . So when Paul said, Im done
talking, then, you didnt say, do you
mean you want to stop talking, did you?
A. Nope.
Q. Probably because that would have sounded
kind of stupid since he just said Im
done talking, right?
A. Is that a question?
Q. Yeah, that was a question.
A. Well, what was your question again?
Q. My question was if someone says to you,
Im done talking, to ask them are you
done talking . . .
A. They -- Ive heard that said to me many times
in an interview . . .
Q. No . . .
A. . . . Ive got nothing more to say, Im -- Im
finished, I quit.
Q. Uh-huh (affirmative). And do you always just
keep right on interrogating?
A. Until they ask to -- to talk -- for a lawyer
or something, I do, yeah.
Q. I see, okay. So to you theres no distinction
between saying, Im done talking, that -- it
doesnt matter until they ask for a lawyer, is
that what youre . . .
A. No, no, because -- go back to the rights
there. It says you can stop talking at any
time.
This testimony does not suggest any misunderstanding of
Munsons request. In the investigators view, Munson was free to
exercise his Miranda right of silence by refusing to answer at
any time, but he could not prevent continued interrogation unless
he expressly pinned his decision to a request for counsel. (Or
perhaps, viewing the testimony most charitably to the
investigator and in the light least favorable to affirming the
superior courts decision, it might have been enough for Munson to
have pinned his decision to his specific intent to invoke his
right against self-incrimination, excluding all lesser reasons;
but even under this charitable view, Munson could not have forced
interrogation to stop merely for fear of reprisals.) Despite
recognizing that Munson had made a clear request to end the
interrogation, then, the investigator nonetheless felt that
Munson had failed to invoke his Miranda rights because he had
failed to come up with the right reason for stopping: it was up
to Munson to cease answering under these circumstances, the
investigator believed, not up to him to cease questioning. As
the superior court implicitly recognized, the investigators
testimony however well-intentioned it might have been simply
betrayed a fundamentally incorrect understanding of Mosleys
requirement that police conducting a custodial interrogation must
scrupulously honor any clear attempt by the defendant to cut off
questioning entirely.
53 Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(defining interrogation under Miranda to include any words or
actions on the part of police (other than those normally
attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response).
54 Michigan v. Mosley, 423 U.S. 96 (1975).
55 James v. State, 75 P.3d 1065, 1068 (Alaska App. 2003)
(footnotes omitted) (quoting Hoffman v. United States, 341 U.S.
479, 486-87 (1951)).
56 2 W.R. LaFave, et al., Criminal Procedure 6.9(g) at
606 (2d ed. 1999).
57 Id. at 607. The cases the state cites as involving
invocations of Miranda that were deemed ambiguous despite being
clear in the literal sense support LaFaves assertion, generally
describing circumstances that made the literal requests to stop
questioning appear to be much more limited in their intended
meaning. Id. at 607-09 and nn.138-44. LaFave notes:
As for assertion of the right to remain
silent, any declaration of a desire to
terminate the contact or inquiry (e.g., Dont
bother me) should suffice. The same is true
of silence in the face of repeated
questioning, or an effort to end the contact
with the interrogator. On the other hand, a
statement which is much more limited in the
sense that it expresses an unwillingness to
respond to a particular interrogator . . . or
an unwillingness or inability to respond to a
particular inquiry . . . is not a general
claim of the privilege.
Id. at 606.
58 While the Miranda test is an objective one that is,
the court must objectively evaluate whether Munsons demand to
stop talking was equivocal under the totality of the
circumstances in which it was actually made we believe that an
understanding of the investigators subjective state of mind is
relevant to our inquiry, for it tends to show how a presumably
reasonable officer with a first-hand view actually did understand
the defendants request to stop talking. Because the officers
subjective impression here, that Munson wished to end the
interrogation coincides with our own, it tends to confirm that
our impression of the record is an accurate assessment of what a
reasonable officer would think.
59 Munsons statement of Well, Im done talkin then could be
viewed as a conditional assertion of silence that is, that
Munson would not speak to the interrogator unless he was first
granted protection from his co-defendant. Without deciding
whether and to what extent an interrogator may respond to a
conditional invocation, we note that the investigators response
to Munsons statement was in no way an inquiry into whether the
interrogation could continue if the condition were satisfied.
Rather, his response was simply directed at persuading Munson to
withdraw his otherwise unequivocal invocation.
60 Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).
61 Id. at 105-06.
62 Smith v. Illinois, 469 U.S. 91, 98-99 (1984) (citation
omitted) (emphasis in original).
63 257 F.3d 513 (6th Cir.) (2001).
64 Id. at 514.
65 Id. at 515.
66 Id. at 519.
67 Id.
1 Playing the surreptitiously recorded tape in which
Munson and another participant discuss the crime was probably
intended as a persuasive tool to convince Munson to talk,
regardless of his reasons for not talking. But the fact that one
has already been tricked by a co-participant into making a tape-
recorded statement about a crime would be relevant to a defendant
who is hesitant to speak because of fear of reprisals. As the
state argues, the tape showed that as a reason to stop talking
fear of retaliation by Camanga . . . was irrational as Munson had
already incriminated Camanga in the surreptitiously recorded
conversation.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 Slip Op. at 11; Medina v. Singletary, 59 F.3d 1095,
1101 (11th Cir. 1995) (rejecting equivocal or ambiguous
invocation).
4 512 U.S. 452, 459 (1994).
5 Id. Many cases have adopted this statement as the crux
of the Davis test. See, e.g., Fitz v. State, 566 S.E.2d 668, 672
(Ga. 2002); Taylor v. State, 689 N.E.2d 699, 703 (Ind. 1997);
Commonwealth v. Jones, 786 N.E.2d 1197, 1206 (Mass. 2003).
6 See United States v. Hurst, 228 F.3d 751, 759-60 (6th
Cir. 2000); United States v. Banks, 78 F.3d 1190, 1197 (7th Cir.
1996), vacated on other grounds, Mills v. United States, 519 U.S.
990 (1996); Medina, 59 F.3d at 1101.
7 See Slip Op. at 11 (test is based on how the statement
would be understood by a reasonable officer in the
circumstances); Davis, 512 U.S. at 459 (same); see also
Nashoalook v. State, 663 P.2d 975, 977 (Alaska App. 1983)
(rejecting argument that defendant had invoked Miranda right to
silence, based on totality of circumstances); United States v.
Johnson, 56 F.3d 947, 955 (8th Cir. 1995) (similar). In the
analogous context of determining whether a suspect is in custody
for Miranda purposes, we have adopted an objective test and
explicitly rejected a subjective test based on the thoughts of
the police officer or defendant. State v. Salit, 613 P.2d 245,
257 (Alaska 1980); see also Hampel v. State, 706 P.2d 1173, 1181
n.7 (Alaska App. 1985) (in measuring the coercive effect of an
officers response to an equivocal assertion of the right to
counsel, We emphasize that the standard we adopt is an objective
one, and does not depend on the subjective intent of the
interrogating officer.).
8 See State v. Ridgley, 732 P.2d 550, 554 (Alaska 1987)
(while determinations of observable facts are reviewed for clear
error, inferences of suspects mental state based on observable
facts and the ultimate voluntariness of confession are subject to
de novo review); State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002)
(similar, whether suspect was in custody for Miranda purposes was
mixed question of law and fact). I note that some cases from
other jurisdictions review purported invocations of Miranda
rights under the clearly erroneous standard. See, e.g., United
States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995). There is
however a good argument that these decisions are not only
inconsistent with our precedent, but contrary to Ornelas v.
United States, 517 U.S. 690 (1996). Ornelas holds that once the
historical facts are established, probable cause determinations,
including whether the facts suffice to generate a reasonable
suspicion in a reasonable officer, are to be determined de novo
on appeal. The United States Supreme Court has further suggested
that Ornelas should govern decisions on whether Miranda has been
invoked. See Mills v. United States, 519 U.S. 990 (1996).
9 See, e.g., Nashoalook, 663 P.2d at 977-78 (viewing the
totality of the circumstances, defendants refusal to speak could
be understood as an objection to tape-recording rather than an
objection to interrogation in any form, was therefore an
ambiguous or equivocal invocation of the right to silence, and
thus did not obligate the police to cease further interrogation).
10 In a police interrogation setting, but not in court.
See Minnesota v. Murphy, 465 U.S. 420, 429-30 (1984) (Miranda
does not apply outside the context of the inherently coercive
custodial interrogations for which it was designed; outside such
contexts a person is required to answer a question unless there
is some rational basis for believing that it will incriminate
him) (internal quotation marks omitted); United States v.
Kilgroe, 959 F.2d 802, 804-05 (9th Cir. 1992) (the courtroom
. . . is not the type of setting that would justify invoking
Mirandas prophylactic rule. The Miranda Court itself recognized
that the compulsion to speak in the isolated setting of the
police station may well be greater than in courts or other
official investigations, where there are often impartial
observers to guard against intimidation or trickery. ) (footnote
and citation omitted); 1 John W. Strong et al., McCormick on
Evidence 123, at 472 (5th ed. 1999) (in-court assertions of
privilege appear to require at least a theoretical risk of
[criminal] liability); cf. Kastigar v. United States, 406 U.S.
441 (1972) (government may compel testimony from witnesses over
self-incrimination objections if the witnesses are granted
immunity from prosecution).
11 Numerous illustrative cases are collected in 2 Wayne R.
LaFave et al., Criminal Procedure 6.9(g), at 607 n.141 (2d ed.
1999).
12 Id. 6.9(g), at 607 (footnote omitted).
13 See, e.g., Nashoalook, 663 P.2d at 977-78 (refusal to
speak was, viewed in context, based on objection to tape-
recording); Henry v. State, 574 So. 2d 66, 69 (Fla. 1991) (Im not
saying nothing to you in context an objection to the
interrogator, not an invocation of the right to silence).
14 See, e.g., United States v. Sanchez, 866 F. Supp. 1542,
1559 (D. Kan. 1994) (I cant say nothing ambiguous because
reasonably interpreted by the trooper to essentially mean that
the defendant could not say anything for fear of reprisal by his
cohorts, rather than an invocation of his right to remain
silent.); State v. Williams, 535 N.W.2d 277, 281, 284 (Minn.
1995) (After being accused of lying suspect stated I dont have to
take any more . . . . and walked out of the interrogation room
and back to his cell; suspects statement and behavior were
motivated by anger and did not amount to an unequivocal and
unambiguous invocation of his right to remain silent.).
15 The suspects dogged refusal to speak, and the
interrogators determination to overcome this refusal, distinguish
McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001), from Munsons
case. In McGraw the suspect refused to speak eight or nine times
but the detective continued to insist that she answer: I just
dont wanna talk about it, she said for the eighth or ninth
time. . . . Refusing to take no for an answer, the detective
kept urging full disclosure. Id. at 515. In addition, far from
suggesting as Officer Hoffbeck did in this case that the final
decision to cut off questioning was up to the suspect, the
detective in McGraw told the suspect that she had to talk about
the crime. Stressing the repeated nature of the suspects
refusals to talk (so describing them several times during the
opinion) the Sixth Circuit concluded: Any reasonable police
officer, knowing that exercise of the right to silence must be
scrupulously honored, would have understood that when Tina
repeatedly said she did not want to talk about the rape, she
should not have been told that she had to talk about it. Id. at
518 (first emphasis added). The repeated nature of the suspects
refusals was an important factor underlying the courts conclusion
that the suspect had unambiguously asserted her right to silence:
Tinas lawyer does not deny that an invocation
of the right to silence, if it is to be
effective, must be unambiguous as well. As
far as we can see, however, there was nothing
ambiguous about Tinas repeated insistence
that she did not want to talk about the rape.
When Tina kept saying, without qualification,
that she just did not want to talk about the
subject making these declarations after she
had been formally advised of her right of
silence it would simply not be reasonable to
take her words at less than face value.
Id. at 519 (emphasis added).
16 Hoffbeck testified that he did not believe that Munson
was invoking his Miranda rights. This, of course, is not
binding, but, as the court of appeals noted, it is supported by
an objective reading of the transcript.
17 512 U.S. at 459.
18 Davis permits officers to ignore ambiguous invocations
of the Miranda right to counsel, 512 U.S. at 461-62, and this
approach has been adopted by some but not all jurisdictions with
respect to the right to silence. Compare Coleman v. Singletary,
30 F.3d 1420, 1424 (11th Cir. 1994) (applying Davis; police have
no duty to clarify ambiguous invocation of the right to silence
and may continue asking questions), with United States v.
Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) (appearing to impose
duty to clarify). Alaska law has taken a somewhat different
approach to the right to counsel, and it seems appropriate to
apply a similar analysis to the right to silence. In Mallott v.
State, 608 P.2d 737 (Alaska 1980), in the context of an equivocal
request for counsel, we stated that the reason why an invocation
of Miranda rights must be appropriately responded to is that
ignoring or rebuffing a suspects invocation of his or her
constitutional rights will convince the suspect that such rights
are illusory. Id. at 742. We stated that this had not occurred
under the circumstances of that case: Had Mallott initially
desired counsel to protect his right to remain silent, we do not
believe the initial trooper response and the interrogation just
described would have convinced him that a second attempted
exercise of his rights would have been futile. We therefore find
the trooper response to Mallotts request for counsel proper
. . . . Id. at 743. This aspect of Mallott can be used as a
standard to decide whether a particular response to an equivocal
assertion of the right to silence is legally acceptable.
1 See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct.
1602, 1612, 16 L.Ed.2d 694 (1966).
2 AS 11.41.100(a)(1)(A); AS 11.16.110.
3 AS 11.31.120.
4 AS 11.41.110(a)(1), (2); AS 11.16.110.
5 998 P.2d 1040 (Alaska 2000).
6 See id. at 1045-46, 1048.
7 See id. at 1041.
8 See id. at 1042.
9 See id.
10 See id.
11 Id.
12 See id. at 1048.
13 Id.
14 See id.
15 See id. at 1046-47 (discussing United States v.
Harrison, 34 F.3d 886 (9th Cir. 1994)).
16 See Harrison, 34 F.3d at 890.
17 See id.
18 See id.
19 See id.
20 See id.
21 See id.
22 See id. at 891.
23 Id.
24 See id.
25 Id.
26 See id.
27 See id.
28 See id.
29 Id. (quoting United States v. Tingle, 658 F.2d 1332,
1336 n.5 (9th Cir. 1981)).
30 Beavers, 998 P.2d at 1047.
31 34 F.3d at 890.
32 998 P.2d at 1042.
33 Stobaugh v. State, 614 P.2d 767, 772 (Alaska 1980)
(quoting United States v. Ferrara, 377 F.2d 16, 17 (2d Cir. 1967)
(citations omitted)).
34 Sprague v. State, 590 P.2d 410, 414 (Alaska 1979)
(quoting Brown v. United States, 356 F.2d 230, 232 (10th Cir.
1966)).
35 See Beavers, 998 P.2d at 1044.
36 See id.
37 See id.
38 See State v. Glass, 583 P.2d 872, 881 (Alaska 1978), on
rehearing, 596 P.2d 10 (Alaska 1979) (holding that under the
Alaska Constitution the police must obtain judicial authorization
before surreptitiously recording a private conversation).
39 See Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct.
321, 326, 46 L.Ed.2d 313 (1975).
40 706 P.2d 1173 (Alaska App. 1985).
41 Id. at 1179-80 (citations omitted).
42 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).
43 Id., 512 U.S. at 459, 114 S.Ct. at 235; 129 L.Ed.2d at
362.
44 Id., 512 U.S. at 461-62, 114 S.Ct. at 2356, 129 L.Ed.2d
at 362.
45 See United States v. Hurst, 228 F.3d 751, 759-60 (6th
Cir. 2000); United States v. Banks, 78 F.3d 1190, 1197-98 (7th
Cir. 1996), vacated sub nom., Mills v. United States, 519 U.S.
990, 117 S.Ct. 478, 136 L.Ed.2d 373 (1996), on remand, 122 F.3d
346 (7th Cir. 1997); Coleman v. Singletary, 30 F.3d 1420, 1424
(11th Cir. 1994); Evans v. Demosthenes, 902 F. Supp. 1253, 1258-
59 (D. Nev. 1995) (predicting that Ninth Circuit would apply
Davis to the right-to-silence context), affd 98 F.3d 1174, 1176
(9th Cir. 1996) (leaving open the question of whether the Davis
rule extends to right to silence); Bowen v. State, 911 S.W.2d
555, 565 (Ark. 1995); People v. Arroya, 988 P.2d 1124, 1130-31
(Colo. 1999); State v. Owen, 696 So.2d 715, 718 (Fla. 1997);
State v. Whipple, 5 P.3d 478, 482-84 (Idaho App. 2000); State v.
Donesay, 959 P.2d 862, 871-72 (Kan. 1998) (based in part on state
law); State v. King, 708 A.2d 1014, 1017 (Me. 1998); State v.
Williams, 535 N.W.2d 277, 284-85 & n.3 (Minn. 1995) (based in
part on prior state law); In re Frederick C., 594 N.W.2d 294, 301-
02 (Neb. App. 1999); People v. Cohen, 226 A.2d 903, 904 (N.Y.
App. Div. 1996), revd on other grounds, 687 N.E.2d 1313 (N.Y.
1997); State v. Greybull, 579 N.W.2d 161, 163 (N.D. 1998); State
v. Murphy, 747 N.E.2d 765, 779 (Ohio 2001); State v. Aleksey, 538
S.E.2d 248, 253 (S.C. 2000); Dowthitt v. State, 931 S.W.2d 244,
257 (Tex. Crim. App. 1996); State v. Bacon, 658 A.2d 54, 65 (Vt.
1995); Midkiff v. Commonwealth, 462 S.E.2d 112, 116 (Va. 1995)
(applying state law); State v. Ross, 552 N.W.2d 428, 431-33 (Wis.
App. 1996). See also 2 W.R. LaFave, et al, Criminal Procedure
6.9(g), at 605-17 (1999).
46 Hampel, 706 P.2d 1173, 1179 n.4.
47 599 P.2d 1371 (Alaska 1979).
48 See id. at 1378-79.
49 See id.
50 627 P.2d 211 (Alaska App. 1981).
51 See id. at 217.
52 See id.
53 663 P.2d 975 (Alaska App. 1983).
54 Id. at 977-78 (quoting Vail, 599 P.2d at 1378).
55 See id. at 978.
56 See id.
(relying on
Michigan v.
Mosley, 423
U.S. 96, 96
S.Ct. 321, 46
L.Ed.2d 313
(1975) (holding
that the
admissibility
of statements
obtained after
the person in
custody has
decided to
remain silent
depends under
Miranda on
whether the
persons right
to cut off
questioning was
scrupulously
honored)).
