State v. Piatnitsky , 180 Wash. 2d 407 ( 2014 )

González, J.

f 1 We are asked today to decide whether Samuel Piatnitsky unequivocally invoked his right to remain silent when he told police investigating a murder that “I don’t want to talk right now” but that he would “write it down.” We find that this is, at best, an equivocal invocation of the right to remain silent, and thus, the trial judge did not err in admitting Piatnitsky’s written confession. We affirm.

FACTS

¶2 In the early hours of October 19, 2008, Samuel Piatnitsky and his friend Jason Young were asked to leave a party. They refused. A fight broke out, and eventually Piatnitsky and Young left. But, approximately 30 minutes later, they returned with Piatnitsky brandishing a shotgun. Announcing his return to the partygoers, Piatnitsky exclaimed something to the effect of “ ‘what’s up now,’ ” chambered a round, and fired a shot. Clerk’s Papers at 3. Shawn Jones, the victim in the case, grabbed the shotgun and began wrestling with Piatnitsky. Young pulled Jones off Piatnitsky, who then fired three more shots, killing Jones and injuring another person.

¶3 King County Sheriff’s deputies were dispatched to the scene around 3:30 in the morning. A K-9 unit followed a track from the crime scene to Young’s house. Young came out when summoned by the officers; Piatnitsky was found hiding in the basement of the house. Officers Mirandized¹ Piatnitsky, and he confessed to shooting Jones and another partygoer. Witnesses brought to the scene of the arrest identified Piatnitsky as the shooter. He was taken into custody and booked.

¶4 Later that morning, Detectives Keller and Allen interviewed Piatnitsky about the shooting. After about an hour of questioning during which Piatnitsky indicated he was willing to give a taped confession, the detectives turned on a tape recorder. The relevant portion of the taped interview went as follows:

DET: Okay, and earlier you were advised of your Miranda rights. Do you remember that, your Constitutional rights by the officer, do you remember that?

SUS: Yeah; I have a right . . .

DET: Did you understand those?

SUS: I have a right to remain silent.

DET: Right. I’m gonna go ahead and . . .

SUS: That’s the, that’s the only one I remember.

DET: Okay. I’m gonna read 'em for you again.

SUS: That’s the one I, I should be doing right now.

DET: Well, you know, like we told you, you don’t have to talk to us. Okay. You’ve already admitted to this thing. We want to go on tape, and because it’s an important part of this, and we talked about that, and that’s the part when you go back to get the shotgun. Before we do any of that, I want to read you . . .

SUS: What are you guys talking about, man?

DET: I want to read you your rights, okay. Do you understand that you have the right to remain silent?

DET2: You gotta answer out loud, SAM.

SUS: I’m not ready to do this, man.

DET2: You just told us that you wanted to get it in your own words on tape. You asked us to turn the tape on; remember?

SUS: I just write it down, man. I can’t do this. I, I, I just write, man. I don’t, I don’t want. . .

DET: Okay.

SUS: I don’t want to talk right now, man.

Pretrial Ex. 3, at 1-2 (alterations in original). The detectives Mirandized Piatnitsky again, and he signed a waiver form. During the recording, the detectives clarified their understanding of the situation:

DET2: Are you sure you don’t want to do it on tape like you said you did; you want to get in your own words?

SUS: Yes, sir.

DET2: Okay.

DET: So you’d rather take a written statement, do a written one.

SUS: Yes. I don’t know (unintelligible)[.]

DET: Okay, it’s too hard to talk about; you’d rather write it.

Id. at 4. Both detectives testified that the unintelligible portion of the recording was Piatnitsky stating once again that he did not want to make an audio-recorded confession. The detectives complied with that request and stopped recording. Instead, one of the detectives wrote down Piatnitsky’s version of the events, which Piatnitsky edited. At some point, Piatnitsky did not like where the questioning was going and he told detectives he was finished and cut off the interview. The detectives stopped asking questions and finished the statement. Piatnitsky then reviewed everything that had been written, requested some changes, and signed the corrected statement.

¶5 Ultimately, Piatnitsky was charged with murder in the first degree, among other things. Before the trial, he challenged the admissibility of his written statement to the police, arguing that he did not waive his right to remain silent knowingly and voluntarily. The trial judge conducted a CrR 3.5 hearing and found that all of Piatnitsky’s statements, written and oral, were admissible because Piatnitsky was able to knowingly, voluntarily, and intelligently waive his rights despite his emotional and physical state at the time of interrogation. Piatnitsky was convicted of murder in the first degree, attempted murder in the first degree, possession of a stolen firearm, and unlawful possession of a firearm in the second degree. The trial court imposed a standard-range sentence of 600 months. Piatnitsky appealed, arguing, among other things, that the trial court should have suppressed his statements because he had successfully invoked his right to silence. State v. Piatnitsky, 170 Wn. App. 195, 210-11, 282 P.3d 1184 (2012). The Court of Appeals affirmed the trial court in a split-panel decision. We granted review on the suppression issue alone and now affirm. State v. Piatnitsky, 176 Wn.2d 1022, 299 P.3d 1171 (2013).

ANALYSIS

¶6 Piatnitsky argues that his statements must be suppressed because he unequivocally invoked his Fifth Amendment² right to silence. See Pet’r’s Combined Suppl. Br. at 10. We disagree. His statement, when examined in context, was at best an equivocal invocation of that right. While the phrase “I don’t want to talk right now, man” could be an unequivocal invocation of the right to silence, it was not uttered in isolation. The context here shows equivocation by Piatnitsky. He did not just say “I don’t want to talk right now, man”; he said, “I just write it down, man. I can’t do this. I, I, I just write, man. I don’t, I don’t want... I don’t want to talk right now, man.” Pretrial Ex. 3, at 2 (alteration in original).

¶7 To be unequivocal, an invocation of Miranda³ requires the expression of an objective intent to cease communication with interrogating officers. Piatnitsky did not express such an intent. Instead, as the detectives reasonably understood, he said he would rather write than talk. Because Miranda rights cannot be partially invoked and must be exercised in an objectively clear way, we affirm the lower courts.⁴

¶8 Prior to any custodial interrogation, a suspect must be informed that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.” Miranda, 384 U.S. at 479. Any waiver of these rights by the suspect must be knowing, voluntary, and intelligent. State v. Radcliffe, 164 Wn.2d 900, 905-06,194 P.3d 250 (2008) (citing Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). Even once waived, a suspect can invoke these rights at any point during the interview and the interrogation must cease. Id. at 906 (citing Edwards, 451 U.S. at 484-85).

¶9 Here, we are asked whether Piatnitsky unequivocally invoked his right to silence before the detectives took his written statement. We find that because the detectives reasonably concluded that Piatnitsky was expressing a preference for a written rather than an audio-recorded statement, any invocation of his Miranda rights was equivocal at best.

¶10 As we stated in Radcliffe, “[T]he United States Supreme Court has decided the [equivocal invocation of Miranda] issue and we must follow its holding as it applies to the Fifth Amendment. Davis [v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994),] is the law under the federal constitution.” 164 Wn.2d at 907. On the similar issue before us, we maintain that Davis controls our analysis.

¶11 Though both Radcliffe and Davis dealt with the invocation of the right to counsel, we draw no distinctions between the invocations of different Miranda rights. We have been instructed that “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel.” Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). Here, we faithfully adhere to this instruction and apply the rules articulated in Davis and Radcliffe to an alleged invocation of the right to silence.

¶12 It is well established that Miranda rights must be invoked unambiguously. Davis, 512 U.S. at 459; Radcliffe, 164 Wn.2d at 906. This is a bright-line inquiry; a statement either is “ ‘an assertion of [Miranda rights] or it is not.’ ” Davis, 512 U.S. at 459 (quoting Smith v. Illinois, 469 U.S. 91, 97-98, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984)). Also, this inquiry is objective. Id. In other words, an invocation must be sufficiently clear “that a reasonable police officer in the circumstances would understand the statement to be [an invocation of Miranda rights].” Id. And so, that is the question before us here. As a matter of law, was it reasonable for the detectives to conclude that the right to silence was not invoked?

¶13 Looking at the context, the detectives interrogating Piatnitsky could reasonably conclude that he never actually invoked his right to silence. In response to a question about whether he understood his Miranda rights, Piatnitsky said, “I have a right to remain silent. . . . That’s the, that’s the only one I remember.... That’s the one I, I should be doing right now.” Pretrial Ex. 3, at 2 (alterations in original). Piatnitsky himself admits that he should have been exercising his right to silence, which, when properly understood, means that he was not actually doing so. Immediately after this interaction, one of the detectives explained that he wanted to get a recording of Piatnitsky’s confession but that he first wanted to go through Miranda once again. To this, Piatnitsky responded, “I’m not ready to do this, man.” Id. The detective asked for a clarification because earlier Piatnitsky had indicated willingness to confess on audio recording.⁵ Piatnitsky obliged, saying, “I just write it down, man. I can’t do this. I, I, I just write, man. I don’t, I don’t want... I don’t want to talk right now, man.” Id. (alteration in original). The detective agreed and told Piatnitsky, “Okay, but let’s go over the rights on tape, and then you can write it down, okay.” Id. Piatnitsky confirmed the detective’s understanding of the statement by saying, “All right, man.” Id. Thus, when Piatnitsky said, “I don’t want to talk right now, man,” his invocation of Miranda was equivocal at best. Id. The detective reasonably concluded that Piatnitsky was expressing a preference for the means of communication.

¶14 The undisputed record shows that Piatnitsky understood he had a right to silence that he was not exercising. And when Piatnitsky expressed some hesitation about the questioning, the record indicates that the interrogating detective clarified Piatnitsky’s desire and received confirmation that the hesitation was about making an audio-recorded statement. The detectives reasonably concluded that Piatnitsky’s statements were a preference for a written statement over a recorded one. The reasonableness of this conclusion is supported by audio recording, transcript, and testimony.

¶15 It is well established that when an accused makes a statement concerning the right to remain silent “ ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.” Berghuis, 560 U.S. at 381 (citation omitted) (quoting Davis, 512 U.S. at 459). Piatnitsky’s statement was at least ambiguous or equivocal, and so the interrogating detectives were not required to end the interrogation. As in Berghuis, we find that the “ [suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity.” Id. at 382.

CONCLUSION

¶16 Piatnitsky did not unequivocally invoke his right to remain silent. It was reasonable for the detectives to interpret Piatnitsky’s statements as an expression of preference for making a written confession rather than an audio-recorded one. Piatnitsky’s statement was a conditional invocation of Miranda. Under Radcliffe, such an invocation must be viewed as equivocal or ambiguous. 164 Wn.2d at 907. Under Berghuis, such an invocation does not require law enforcement to ask for clarification or suspend questioning. 560 U.S. at 381. We find the statements were properly admitted at trial and affirm.

Madsen, C.J.; C. Johnson and Owens, JJ.; and J.M. Johnson, J. Pro Tem., concur.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 U.S. Const. amend. V.

3 Miranda, 384 U.S. 436.

4 In the alternative, Piatnitsky argues that even if his invocation of the right to silence was equivocal, article I, section 9 of our state constitution limits law enforcement to clarifying questions when such an invocation is made. See Pet’r’s Combined Suppl. Br. at 20, 30. Piatnitsky did not raise this argument at trial, at the Court of Appeals, or in his petition for discretionary review. We decline to reach it. See RAP 13.7(b); State v. Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250 (2008).

5 Specifically, the detective said, “You just told us that you wanted to get it in your own words on tape. You asked us to turn the tape on; remember?” Pretrial Ex. 3, at 2.