State v. Piatnitsky

Wiggins, J.

¶17 (dissenting) — Has a suspect unequivocally invoked his right to remain silent when he tells police “I don’t want to talk right now”? The majority answers this *416question in the negative, and I respectfully dissent. We should hold that Samuel Piatnitsky unequivocally invoked his right to remain silent when he said those very words during a police interrogation. While he qualified his invocation of rights with his assent to “write it down,” he was not allowed to write anything down. Rather, the police continued their interrogation. Although the police wrote down a statement in the process and Piatnitsky signed the statement, these subsequent facts do not make equivocal his earlier statement that “I don’t want to talk right now.” The majority opinion whittles away the right to be free from self-incrimination and ignores the inherently coercive nature of custodial interrogation.

A. An invocation of Miranda rights must be unequivocal in context

¶18 As the Supreme Court recognized in Miranda, the pressures inherent to custodial interrogations naturally tend to push suspects to talk to the police, encouraging them to waive their constitutional privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 457-58, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). As a means of assuring that a suspect’s choice to talk to the police is made freely, Miranda requires the police to inform suspects of their right to remain silent and their right to the presence of an attorney. Id. at 479. A suspect may choose to invoke these rights at any time prior to or during questioning.6 Id. at 472-73.

¶19 A suspect’s invocation of Miranda rights may be equivocal or unequivocal. If the suspect’s invocation is equivocal, then officers may carry on questioning. Davis v. *417United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). They are not required to cease the interrogation or clarify whether or not the suspect actually meant to invoke Miranda. Id. However, if the invocation is unequivocal, the police must stop their questioning immediately. They may not resume discussion with the suspect until the suspect himself or herself reinitiates further communication with the police or counsel is made available to the suspect. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).

¶20 An invocation of Miranda rights is unequivocal so long as a “reasonable police officer in the circumstances” would understand it to be an assertion of the suspect’s rights. Davis, 512 U.S. at 459. This test encompasses both the plain language and the context of the suspect’s purported invocation. Therefore, when a suspect says, “ ‘Maybe I should talk to a lawyer’ ” and subsequently clarifies that “[‘] [n]o, I’m not asking for a lawyer,’ ” the suspect has not invoked his Miranda rights and questioning may continue. Id. at 455 (first alteration in original). On the other hand, when a police officer tells a suspect about his right to have a lawyer present and the suspect says, “ ‘Uh, yeah, I’d like to do that,’ ” the suspect has unequivocally invoked Miranda rights and the officer must stop the questioning immediately. Smith v. Illinois, 469 U.S. 91, 93, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).

¶21 The Supreme Court has additionally created a third category of invocations that are unequivocal but limited in scope. In Connecticut v. Barrett, 479 U.S. 523, 525, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), the defendant refused to give a written statement without an attorney present but told the police that “ ‘he had no problem in talking about the incident’ ” and proceeded to give an inculpatory oral statement. The Supreme Court held that in light of the “tenor or sense of a defendant’s responses to [Miranda] warnings,” the defendant had not unequivocally invoked his right to remain silent. Id. at 528. The Court noted that “Barrett’s *418limited requests for counsel . . . were accompanied by affirmative announcements of his willingness to speak with the authorities.” Id. at 529 (emphasis added). That is, Barrett’s invocation of his right not to give a written statement was clear. But it did not equate to an invocation of his right not to talk because he explicitly said he had “ ‘no problem’ ” doing so. Id. at 525. Thus, when Barrett proceeded to talk, evidence of his oral statement was admissible.

¶22 The Supreme Court has also limited the context a court may consider in determining whether the invocation of the right to remain silent was unequivocal. We may not rely on statements made after the suspect’s purported invocation in order to retroactively cast doubt on a facially clear and unequivocal invocation of Miranda rights. Smith, 469 U.S. at 99. In Smith, the defendant was advised of his right to have counsel present and told the police, “ ‘Uh, yeah, I’d like to do that.’ ” 469 U.S. at 93. Rather than cutting off discussion, the police proceeded to finish reading Smith his Miranda rights and asked him, “ ‘Do you wish to talk to me at this time without a lawyer being present?’ ” and Smith answered, “ “Yeah and no, uh, I don’t know what’s what, really.’ ” Id. The trial court seized on Smith’s latter statement as proof that Smith’s invocation of Miranda had been equivocal and admitted evidence of Smith’s statements to police. The Supreme Court disagreed, holding that “[w]here nothing about the request... or the circumstances leading up to the request would render it ambiguous, all questioning must cease.” Id. at 98 (emphasis added). In other words, what the accused said after invoking his Miranda rights might be relevant to waiver but it was not relevant to the invocation itself. Id. Smith’s statement that “I’d like to [get a lawyer]” was not ambiguous on its face and did not become so because he later said, “I don’t know what’s what.” Id. at 93.

¶23 Pursuant to Supreme Court precedent, I now analyze Piatnitsky’s statements, and the context leading up to *419his statements, to determine whether his invocation of Miranda was unequivocal and, if so, what scope it covered.

B. Piatnitsky unequivocally invoked his right to remain silent

¶24 The majority concludes that Piatnitsky equivocally invoked his Miranda rights when he said, “ T don’t want to talk right now, man.’ ” Majority at 414 (quoting Pretrial Ex. 3, at 2). I disagree. The context leading up to Piatnitsky’s statement indicates that his statement was unequivocal, albeit limited. The detectives did not abide by Piatnitsky’s clear refusal to talk, and the statement they prepared for him should not have been admitted.

¶25 Piatnitsky told the detectives, “I don’t want to talk right now.” On its face, there is nothing equivocal or ambiguous about this statement: he did not use equivocal words like “maybe” or conditional words like “if.” A statement that the suspect “want[s] to remain silent or that he [does] not want to talk with the police” is a “simple, unambiguous statement ]” that cuts off questioning. Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). Piatnitsky made just such a refusal. It is difficult to ask a suspect to phrase a refusal any more clearly than “I don’t want to talk” — particularly a suspect who was deprived of sleep and who had recently suffered a head injury.

¶26 The trial court found at the CrR 3.5 hearing that Piatnitsky was willing to talk to the police, albeit not on tape. In affirming, the court of appeals relied on three contextual points: first, that Piatnitsky talked with the detectives prior to the audio-recorded interview; second, that Piatnitsky “participated fully” in Detective Allen’s preparation of the written statement; and third, that Piatnitsky said he was willing to “ ‘write it down.’ ” State v. Piatnitsky, 170 Wn. App. 195, 222-24, 282 P.3d 1184 (2012).

¶27 The first contextual clue, that Piatnitsky was willing to talk with the detectives prior to the audio-recorded *420statement, is unavailing because a suspect may invoke his Miranda rights at any time. Miranda, 384 U.S. at 473-74. A suspect may talk with the police and then decide to stop talking with them for any or no reason. If a facially clear refusal to talk could be vitiated by the suspect’s prior assent to talk to police, then the Miranda right to halt questioning at any time would be nullified.

¶28 Next, the decision of the Supreme Court in Smith precludes the second contextual clue on which the appellate court relied: that Piatnitsky talked with the detectives after his invocation of Miranda. In Smith, the police continued to question the suspect after he was informed of his right to talk to a lawyer and said, “ ‘Uh, yeah, I’d like to do that.’ ” 469 U.S. at 93. The Supreme Court held that further questioning after that point was impermissible, even though the suspect eventually agreed to talk to the police. Id. at 97-98.

¶29 The Smith rule is simple: once the suspect unequivocally invokes his Miranda rights, the police may not continue questioning, not even to ask if the suspect is sure he wants to invoke Miranda. The police here violated this rule, and the fact that Piatnitsky participated in the preparation of the written statement and signed off on it is no more relevant than the fact that the suspect in Smith eventually agreed to talk to the police.

¶30 The third contextual clue is more relevant; it is true, as the Court of Appeals points out, that Piatnitsky qualified his refusal. Immediately prior to saying, “I don’t want to talk . . .,” Piatnitsky stated that “I just write it down . . . .” Pretrial Ex. 3, at 2. Barrett addressed the situation where a suspect agreed to talk while refusing to provide a written statement. This case presents the converse: the suspect agreed to write but refused to talk. Thus, as Piatnitsky’s counsel conceded at oral argument, there would be no Miranda issue if the police indeed had ceased their oral conversation with Piatnitsky and had abided by his request to “write it down.”

*421¶31 But the police did not abide by Piatnitsky’s request. They did not give Piatnitsky pen and paper but finished reading him his Miranda rights and then carried on questioning him. As Detective Keller testified at trial:

Q When you went off tape, did you and Detective Allen proceed to do an interview with the Defendant, just not record it?
A Yes, that’s correct.
Q What was your role during this interview?
A Well, I was taking notes and assisting with questioning.
Q Did both you and Detective Allen take notes contemporaneously, or was one of you writing the actual statement while one of you was asking questions?
How did that work?
A I asked questions. We both asked questions, and it was kind of a mutual questioning.
Detective Allen wrote down the actual, what Mr. Piatnitsky wanted on the statement.

Report of Proceedings (RP) (Sept. 16 & 20, 2010) at 23-24. In other words, the police resumed their questioning, with the only difference being that Detective Allen was writing down Piatnitsky’s answers. As the court of appeals correctly notes, the Supreme Court held in Barrett that where a suspect expresses a clear intention to communicate with the police through one medium and not another, the police may respect the suspect’s choice without running afoul of Miranda. 479 U.S. at 529. And the court of appeals’ reliance on Barrett would be proper if the police had indeed respected Piatnitsky’s choice of medium. They did not; they continued to talk to him after he said he did not want to talk. Piatnitsky’s invocation of his Miranda rights was clear and unequivocal as to talking, and yet the police persisted in talking to Piatnitsky. The majority ignores this fact and, instead, gives too much deference to police interrogators at the expense of protecting defendants’ rights.

¶32 The trial court should not have admitted Piatnitsky’s statements, and this error was not harmless. While *422the State presented substantial evidence aside from Piatnitsky’s confession to rebut Piatnitsky’s theory of self-defense, that evidence was not so overwhelming as to require a jury to reject Piatnitsky’s theory and convict him. I would require a new trial.

CONCLUSION

¶33 Piatnitsky’s statement that “I don’t want to talk right now, man” was a limited refusal, in the context of his affirmative statement that he would “write it down.” Nevertheless, the police did not comply with even this limited refusal. Piatnitsky was not, in fact, allowed to write down his own statement. Rather, the police persisted in talking to Piatnitsky. The fact that they may have done so in furtherance of “writing it down” for him does not excuse their failure to respect Piatnitsky’s invocation of Miranda. The trial court incorrectly admitted Piatnitsky’s written statement, and the error was not harmless.

¶34 I respectfully dissent.

Fairhurst, Stephens, and Gordon McCloud, JJ., concur with Wiggins, J.

Reconsideration denied July 10, 2014.

The Supreme Court has subsequently held that an invocation of the right to remain silent and an invocation of the right to counsel are treated the same way. An invocation of either right is sufficient to terminate an interrogation. Berghuis v. Thompkins, 560 U.S. 370, 376, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (citing Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)). Accordingly, we read the cases regarding a suspect’s right to remain silent and a suspect’s right to counsel together.