People v. Arroya

Justice KOURLIS,

concurring in part and dissenting in part:

I concur with the majority’s statement of the “clear articulation rule” as the proper objective test for assessing whether a suspect has invoked her right to remain silent. However, I dissent as to the application of the test to these facts. Because the trial court did not utilize the correct test to determine whether Arroya invoked her right to remain silent, I would remand the case for further findings consistent with this newly defined standard.

I.

The admissibility of Arroya’s confession poses two distinct and separate factual and legal inquiries. First, the court must determine whether Arroya invoked her right to remain silent, by applying the “clear articulation rule” as outlined in Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Second, the court must assess whether the police scrupulously honored that invocation by applying the factors outlined in Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) and People v. Quezada, 731 P.2d 730, 733-34 (Colo.1987). Although both inquiries require the court to assess the totality of the circumstances, a court must address each test separately in order to determine the admissibility of a custodial statement. In short, the suspect must clearly articulate a desire to cease questioning before the investigating officers have any duty to scrupulously honor that request.

In my view, the trial court in this case intermixed the two questions. Indeed, the majority makes use of several of the trial court’s findings on the second question in order to analyze the first question. I would urge their separate and distinct treatment, at the trial court level and before this court.

A.

Under the “clear articulation rule” outlined by the majority, when a suspect unambiguously invokes her constitutional rights, the interrogation must cease. See Davis, 512 U.S. at 458, 114 S.Ct. 2350. But if a suspect’s invocation is ambiguous, police are not required to terminate questioning. See id. at 462, 114 S.Ct. 2350. An ambiguous communication is one giving rise to opposing inferences. See People v. Romero, 953 P.2d 550, 554 (Colo.1998). Only an unambiguous or unequivocal invocation of the right to remain silent triggers Miranda’s protections. See State v. Williams, 535 N.W.2d 277, 285 (Minn.1995).

On the first question of whether Arroya unambiguously invoked her constitutional rights, the standard that we today adopt calls upon the trial court to determine whether a reasonable police officer would have viewed the statement of the suspect as an invocation of the right to cease questioning. See Davis, 512 U.S. at 459, 114 S.Ct. 2350. Because Miranda is a prophylactic rule implemented to regulate police conduct, reviewing courts should step into the shoes of the interrogating officer working with that particular suspect. As the majority explains, this is an objective standard: “whether in the context of question and answer, the suspect’s responses reasonably could be construed by a police officer to mean that the suspect” wishes to remain silent. Romero, 953 P.2d at 556.

Further, in order for the trial court to determine what a reasonable officer would have understood in that particular situation, courts must consider the totality of the circumstances. See id. at 555. It is not enough to look at the words of the suspect standing alone.

Discerning whether a defendant made a clear statement under the totality of the circumstances requires consideration of the questions that preceded the statement as well as the officer’s response to the statement. In United States v. Johnson, the court weighed the fact that the statements at issue were not made in response to questions about the crime, but in response to questions about whether the defendant wished to waive his rights. 56 F.3d 947, 955 (8th Cir.1995). The court in State v. Greybull found that the defendant’s “comments about not saying any*1137thing were equally unclear, especially since she continued to respond to the officers’ questions.” 579 N.W.2d 161, 163 (N.D.1998); see also Bobo v. Kolb, 969 F.2d 391, 397 (7th Cir.1992) (considering that both before and after the alleged invocation of rights, the defendant freely answered questions).1

B.

Only after a trial court has determined that a suspect invoked her right to remain silent, should the court turn to the next question: whether the police scrupulously honored the invocation. See Mosley, 423 U.S. at 104, 96 S.Ct. 321.

II.

The trial court in this case applied the wrong standard. In concluding that Arroya invoked her constitutional rights, the trial court considered only the specific words spoken by the defendant, which the trial court interpreted as a demand to cease questioning. Although the trial court considered the context of Arroya’s statements in determining whether the officer employed unscrupulous interrogation tactics and whether he scrupulously honored her invocation of the right to remain silent, it did not look to the totality of the circumstances in first determining whether Arroya clearly invoked that right. The trial court also did not consider what a reasonable officer in those circumstances would have understood the defendant’s statement to mean.

The trial court reviewed the transcripts and videotapes of the interrogations and then specifically ruled that,

[t]he very first part of the advisement given by Detective Neil stated that Defendant had a right to remain silent. While she had voluntarily agreed to speak and had voluntarily spoken with the detective for some period of time, the statement “I don’t wanna talk no more,” is a clear invocation of her right to remain silent. The court concludes that her statement is an invocation of the right to remain silent and triggers the steps which must be taken to re-initiate conversations with defendant which are outlined in the Mosley and Quezada [sic].

This is the trial court’s only analysis of Arro-ya’s invocation of her right to remain silent. The remainder of the trial court’s ruling focuses on whether the police scrupulously honored Arroya’s invocation. Although the trial court mentions three times in passing that her invocation was unambiguous, it did not explain how it reached that determination. In the totality of the circumstances analysis adopted by the majority today, I cannot agree that the statement was an unambiguous demand to cease questioning.

The ten specific trial court findings cited by the majority were made in the context of other issues. For example, the trial court noted the fact that Arroya had no experience with the criminal justice system as relevant to the issue of whether the detective needed to reissue Miranda warnings to Arroya. The trial court made findings as to the words spoken by the detective, his response to Ar-roya’s statement, his demeanor and tone, the content of the interrogation, the point in the interrogation at which the defendant invoked her right to remain silent, and Arroya’s behavior during questioning in conjunction with the court’s evaluation of the police interrogation tactics. Additionally, the court made findings about whether the detective attempted to clarify Arroya’s statement in response to the claim that the police failed to scrupulously honor her rights. The trial court did not direct these findings at determining whether the statement was a clear invocation of Arroya’s rights.

When placed in the context in which they were spoken, the words, “I don’t wanna talk no more,” appear ambiguous. It is possible *1138that the words could have been understood more than one way — as a desire to take a break from questioning, or as a desire to terminate questioning. The trial court made no findings on that point.

Earlier in the second interview, Detective Neil asked Arroya if she wished to take a break, and she declined. When the Detective again asked, “Do you wanna break?”, Arroya then said, “I don’t wanna talk no more.” Immediately after Arroya made this statement, Detective Neil continued to ask questions about taking a break:

Neil: Do you wanna break?
Arroya: (Crying) I don’t wanna talk no more.
Neil: We’ll take a break. Do you want a glass o’ water or do you smoke?
Arroya: Yes.
Neil: Do wanna cigarette? I don’t know who smokes here but I’ll try to find one.
Arroya: (Heavy sighing)
Neil: Want something to drink?
Arroya: No, not really.
Neil: Restroom? You’re okay?
Arroya: (No verbal response)
Neil: ’kay. We’ll break.

Following the short break in the interview, Detective Neil asked Arroya if she felt better, and then continued the interrogation. Arroya did not object. Arroya’s overall demeanor was calmer and more composed following the break. Given the question which drew Arroya’s statement and the line of questioning that followed the break, it may have been reasonable for Detective Neil to understand that Arroya wished only a break from, not an end to, the interrogation. His questions immediately following her statement also could have been an attempt to clarify whether she did, in fact, desire a break.

Other circumstances contribute to the ambiguity. Prior to the interrogation, Arroya signed a form indicating that she waived her rights, and she appeared to have understood that she voluntarily agreed to speak with police. The videotape of the second interview demonstrates that at the beginning of the session, Arroya was unresponsive, refusing to answer many of Detective Neil’s questions, and the answers she did give were often unintelligible. She slumped in her chair, refused to make eye contact, and cried intermittently. As the interview continued, however, Arroya became increasingly responsive and she answered most of Detective Neil’s questions even though she refused to make eye contact. After the break, she continued to talk with a much calmer demeanor, describing how she killed her son. At no point in the interviews did Arroya indicate that she wanted to cut off questioning or request an attorney.

The primary issue in this case is a mixed question of law and fact. Although this court affords considerable deference to trial court findings of fact, it has de novo review over the proper legal standard and a trial court’s legal conclusions. See Romero, 953 P.2d at 555. Because Colorado appellate courts had not yet clarified this point of law, the trial court did not employ the proper standard in its analysis. Although the trial court considered the totality of the circumstances regarding other aspects of Arroya’s interrogation, such as whether Detective Neil used unscrupulous interrogation tactics, the trial court opinion provides no evidence that the court considered the context of the statement in assessing whether Arroya invoked her right to remain silent. The trial court also made no findings as to how a reasonable officer in those circumstances would have understood Arroya’s statement.

After reviewing the record, including the videotapes of the interrogations, I find Arro-ya’s statement ambiguous. Since the trial court made no findings concerning the circumstances or facts that led it to conclude that the statement was a clear invocation of Arroya’s right to remain silent, I would remand the case for application of the proper standard to the facts of the case. Because it is unclear whether Arroya sufficiently invoked her right to remain silent such that Detective Neil had any obligation to honor such a request, I would not reach the next step in the analysis of whether the police scrupulously honored Arroya’s invocation.

Chief Justice MULLARKEY and Justice RICE join in this concurrence and dissent.

. In the right to counsel context, the Supreme Court has held mat when a suspect clearly invokes his Fifth Amendment protections, any responses to questions subsequent to that invocation cannot be used to cast doubt on the clarity of the initial request. See Smith v. Illinois, 469 U.S. 91, 97, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Rather, subsequent statements are relevant only as to whether the defendant waived his invocation of rights. See id. at 98, 105 S.Ct. 490. Lower courts have limited this holding to instances where the suspect clearly invoked his rights. If the suspect makes an ambiguous request, then Smith does not apply and courts may consider subsequent statements made by the suspect. See, e.g., State v. Thomas, 698 S.W.2d 942, 947-48 (Mo.Ct.App.1985), Jamail v. State, 787 S.W.2d 372, 377 (Tex.Crim.App.1990).