concurring. The crux of this appeal is whether Robinson clearly and unambiguously invoked his right to remain silent after receiving the Miranda warnings. The State argues that he did not because he said he did not want to talk “right now,” and that could mean he was amenable to talking later. I agree with the majority that Robinson invoked his right to silence and, as a result, his conviction must be reversed.
I write, however, to underscore that the initial invocation of rights must be clear and unambiguous. If the invocation of rights is not clear, how is law enforcement to know to cease questioning? Surely, an ambiguous response to Miranda warnings such as “I want to think about it,” would not be a clear invocation of rights, and this court has so held. See Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). And if the invocation of rights is unclear, law enforcement may proceed with questioning. Id.
The majority, nonetheless, appears to require something less than an initial, unequivocal invocation of rights. What appears to trip up the majority is our criminal Rule 4.5, which reads that no law enforcement officer shall question an arrested person if that person “has indicated in any manner” that he wants to be silent. The majority suggests that an indication “in any manner” is something less than a clear and unambiguous invocation of rights. I disagree. So does the Supreme Court. Only if the request for counsel (and by analogy, the request for silence) is unambiguous and unequivocal must pre-waiver questioning cease. See Smith v. Illinois, 469 U.S. 91, 95 (1984) (Court states in its analysis of whether later answers to police questioning cast doubt on the accused’s initial request for counsel that occasionally “an accused’s asserted request for counsel may be ambiguous or equivocal.”).
Accordingly, I too would reverse, but I would clarify for law enforcement, the bench, and bar that a pre-waiver invocation must be clear and unambiguous. If the invocation is unclear or ambiguous, law enforcement is on safe ground in proceeding to question, as was the case in Bowen v. State, supra. That is the argument that the State and the dissent make in this case. By not clarifying the point, the majority lends confusion to an important stage of police questioning.