Saturday, May 23, 2015

"I ain't talking no more" is unambiguous invocation of right to remain silent

Benjamin J. Fisher won in State v. Brisco, No. 112,644 (Kan. App. May 1, 2015)(unpublished), affirming Judge Chambers' suppression of several incriminating statements in a Reno County murder prosecution. The following facts were set out in the COA opinion:
The next day, Brisco was interviewed by law enforcement the first time. He denied any involvement in the murder. The following day, Brisco was arrested and interviewed a second time. The detective read Brisco his Miranda rights, and he agreed to speak with the detective. Brisco began to talk to the detective about his version of the events from the night of the murder. At one point during the interview, Brisco indicated he did not want to talk to the detective during the interview but then continued to talk anyway. However, 4 hours into the interview at approximately 11:25 p.m. Brisco placed his hat on his head, folded his arms over his chest, and stayed silent for several seconds. The detective reinitiated questioning. He asked about the gun used, but Brisco remained silent until he stated, “I ain't talking no more.” The silence continued until the detective asked Brisco further questions to which Brisco gave responses.
The COA agreed with Judge Chambers that the statements were obtained in violation of the right to remain silent:
While Brisco's first invocation of his right to remain silent was ambiguous because he continued speaking to the detective of his own accord, Brisco's second invocation of his right to remain silent was not ambiguous or equivocal. During the interview, Brisco placed his hat on his head, folded his arms over his chest, and stayed silent for several seconds. The detective then asked about the gun used, but Brisco remained silent until he stated, “I ain't talking no more.” The silence continued until the detective asked Brisco further questions to which Brisco gave responses. Moreover, the detective never asked any clarifying questions pertaining to Brisco's invocation of his right to remain silent. Not only did Brisco's body language suggest that he was no longer willing to talk, but he specifically stated that he was no longer willing to talk to the detective. Unlike Brisco's first attempt to invoke his right to remain silent, he did not reinitiate the conversation; the detective did. The state concedes that it was the detective that reinitiated the conversation. Thus, the district court did not err when it determined that Brisco's statements made after he unambiguously invoked his right to remain silent should be suppressed.
[Update: the state filed a PR on May 28, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on July 31, 2015.]

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