dissenting.
Because I believe that the order of the district court granting the writ of habeas corpus should be affirmed, I respectfully dissent. The majority concedes that the petitioner has established a prima facie case that the state appellate court’s finding is not fairly supported by the record and yet remands the cause for an evidentiary hearing. Gorham’s constitutional claim turns on the resolution of one factual question: Did Gorham unequivocally exercise his right to cut off questioning? The majority believes that the facts surrounding this question are in dispute. I believe that the record establishes beyond doubt that Gorham exercised his right to remain silent and this right was not “scrupulously honored.” Michigan v. Mosely, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975).
Four people were present at various times during Gorham’s initial interrogation from 9:45 to 10:00 P.M. on April 2, 1976. Of these four people, three testified at the pretrial motion to suppress the confession. Barger testified that Gorham responded, “No,” when asked if he would like to make a statement. Helsel testified that to the best of his recollection, Gorham declined or refused to make a statement. Naughton testified that Gorham was mulling over whether he would make a statement. The reliability of Barger’s and Helsel’s testimony, however, is bolstered by the testimony of two additional witnesses not present during the initial interrogation. When Barger and Helsel left the room at 10:00 P.M., they indicated to officers Kuester and Robustelli that Gorham had declined to make a statement up to that point and Kuester and Robustelli so testified. Further, the fact that Kuester and Robustelli were asked to replace Barger and Helsel as the interrogators is highly indicative of the fact that Gorham refused to give a statement from 9:45 to 10:00 P.M. Almost all the evidence (the circumstantial evidence surrounding the interrogation and the testimony of four witnesses) supports Gorham’s petition. Only the testimony of Naughton supports the majority’s position.
The majority seems to think it is important that Barger testified that Gorham refused to give a statement “at that time.” The majority believes that there is no apparent reason for Barger to have qualified Gorham’s response. People, however, often editorialize. The cross-examination makes it abundantly clear that Barger was in fact editorializing. Moreover, even if we assume that Gorham did say he would not give a statement at that time, he still exercised his right to remain silent. If Gorham, by using the words “at this time,” indicated that he would waive his right to remain silent in the future, it was not up to the police or the prosecutors to determine when the future had arrived. The use of the words, “No, not at this time,” should have been sufficient to cut off questioning.
The majority also thinks it important that Gorham “declined” to make a statement. The majority believes that “further exploration may reveal that Gorham ‘declined’ to make a statement in the sense of equivocating. ...” Majority opinion at 11. It is inconceivable that “decline” can indicate an equivocal response. The majority has discovered a meaning for the word “decline” not found in any dictionary.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), provides that:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion. . . .
If two of the four individuals present during the interrogation (and two out of three who actually testified) indicated that Gorham refused or declined to make a statement, Gorham must have indicated in some manner that he wished to remain silent. This cannot seriously be disputed; this is all that Miranda requires. Miranda does not compel a prisoner to convince everyone present that he will remain silent. The *940language of Miranda is broad, as should be the protections surrounding a prisoner’s Fifth Amendment rights. Gorham’s interrogation should have ceased at 10:00 P.M. or perhaps sooner. An evidentiary hearing, which was not requested by the Government, will not make this any clearer.
I would affirm the order.