MUNSON v. STATE

OPINION

CARPENETI, Justice.

I. INTRODUCTION

During a custodial interrogation, murder suspect Paul Munson unambiguously declared that he wished to terminate the interrogation. The investigator continued questioning Munson, who subsequently confessed to his participation in the crime. The trial court suppressed the confession. The court of appeals reversed, finding that Munson had only ambiguously invoked his right to remain silent, that an ambiguous request is insufficient to invoke the right, and that a police interrogator has no duty to clarify an ambiguous invocation of the right. Because we find that Munson unambiguously invoked his right to remain silent, we reverse the decision of the court of appeals.

II. FACTS AND PROCEEDINGS

A. Facts

On September 14, 1999 Paul Munson was charged with the murder of Morgan ("Wolfie") Gorsche. The state alleged that Munson and three friends killed Gorsche in retaliation for allegedly molesting a three-year old girl. On September 15 Munson was arrested in Portland, Oregon by Anchorage police detectives Joseph Hoffbeck and David Parker, who interviewed Munson at a Portland police station before his extradition to Alaska. They informed Munson of his Miranda rights and proceeded to ask him questions about the murder. A few minutes into the interview, as Detective Hoffbeck began to ask questions directly related to the homicide, Munson expressed fear that a co-defendant, Samuel Camanga, might learn of his discussion with the police, and he indicated that he did not want to discuss the crime:

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

[Munson]: What's gonna happen? Is Sam gonna know I'm saying this?

[Investigator]: Maybe Sam's already talked to me.

[Munson]: No, but . . .

[Investigator]: Eventually Sam is going to know, yes . . . the answer to that is yes. Everybody . . . everybody involved is going to know eventually . . . yes they will.

[Munson]: Well, I'm done talkin' then.

(Emphasis added.) Rather than ceasing the questioning at this point, Detective Hoffbeck continued:

[Investigator]: Before you make a final decision on that there . . . play that tape there for him . . .

[Munson]: You know what'll happen to me?

[Investigator]: Listen to this here . . .

Hoffbeck then played a recording, which had been surreptitiously obtained pursuant to a Glass warrant, of Munson discussing the killing with another co-defendant, Shane Clapper. After playing the recording and attempting to persuade Munson that his fears were unfounded, the investigator continued questioning Munson, who eventually confessed to his participation in the murder and implicated Sam Camanga as the person who actually shot Gorsche.

See State v. Glass, 583 P.2d 872, 881 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (holding that under Alaska Constitution police must obtain judicial authorization before surreptitiously recording private conversation).

B. Proceedings

At an evidentiary hearing before Superior Court Judge Michael L. Wolverton, Munson argued that his confession should be suppressed because the state failed to honor his request to remain silent. Judge Wolverton agreed with Munson, concluding that he had attempted to invoke his right to remain silent when he said "Well, I'm done talkin' then," and that the investigator violated this right by continuing the interrogation. The court suppressed Munson's statements following his invocation of the right to remain silent.

The state petitioned for review, arguing that suppression was inappropriate because Munson had only equivocally invoked his right to remain silent, which, it claimed, was insufficient to trigger the state's obligation to terminate the interrogation or to clarify Munson's intent. The court of appeals agreed. The appeals court first found that Munson had ambiguously invoked his right to remain silent. Although the trial court had made no such finding, the court of appeals concluded that such a determination was implicit in the trial court's description of what the police should have done after Munson said, "Well, I'm done talkin' then." The court then noted that while Alaska law requires the police to clarify ambiguous requests for counsel, the U.S. Supreme Court's more recent pronouncement in Davis v. United States imposes no such duty on police interrogators. Citing a number of jurisdictions that have construed Davis to also require an unambiguous invocation of the right to remain silent, and reasoning that "the right to counsel is more rigidly observed than the right to silence," the court concluded that the police have no duty to clarify an ambiguous invocation of the right to remain silent, and it reversed the suppression of Munson's confession. We granted review.

State v. Munson, Mem. Op. J., No. 4494 at 14-15, 2001 WL 1477918 (Alaska App., Nov. 21, 2001).

Id. at 14, 2001 WL at *6.

Id. Judge Wolverton suppressed Munson's statement because he concluded that an invocation of either the right to remain silent or the right to counsel triggers a duty by the police to clarify a suspect's intent to exercise his right against self-incrimination.

Hampel v. State, 706 P.2d 1173, 1180 (Alaska App. 1985).

512 U.S. 452, 461-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

State v. Munson, Mem. Op. J., No. 4494 at 15-17, 2001 WL 1477918, at **6-7 (discussing development of state and federal law regarding ambiguous invocations of right to counsel).

Id. at 16, 2001 WL at *7, n. 45.

Id. at 17, 2001 WL at *7 (citing Hampel v. State, 706 P.2d 1173, 1179 n. 4 (Alaska App. 1985)).

Id. at 19, 2001 WL at *8.

III. STANDARD OF REVIEW

Whether Munson invoked the right against self-incrimination protected by both the United States and Alaska Constitutions presents a mixed question of law and fact that we review using our independent judgment. We adopt factual findings made by the trial court that are not clearly erroneous. In the absence of express findings, we must resolve disputed factual issues in favor of the party prevailing in the trial court. We review questions of law de novo, and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

U.S. CONST. amend. V.

ALASKA CONST. art. I, § 9.

See, e.g., State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002) (whether suspect in custody for Miranda purposes presents mixed question of law and fact qualifying for independent review) (internal quotations and citations omitted).

Id.

Id.

Id.

Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

IV. DISCUSSION

A. Munson's Request To Terminate the Custodial Interrogation Was Unambiguous.

Was Munson's statement, "Well, I'm done talkin' then," adequate to invoke the right to silence protected by the Fifth Amendment to the Federal Constitution and article I, section 9 of the Alaska Constitution? On its face, Munson's statement was entirely unambiguous: He clearly indicated that he was finished talking with the police. The state argues, as it did below, that the context of Munson's comment showed that he was afraid of retaliation by Sam Camanga — not of incriminating himself. The state reasons that Munson's request was therefore equivocal and thus insufficient to trigger any duty by the police to honor Munson's right to silence. The court of appeals agreed.

State v. Munson, Mem. Op. J., No. 4494 at 19, 2001 WL 1477918, at *8.

We agree that the context of Munson's statement suggests that he wanted to terminate the interrogation because he was afraid of retaliation by Sam Camanga. But there was nothing ambiguous about the statement itself; and an otherwise unambiguous request to terminate a custodial interview does not become somehow equivocal because it might be motivated by a fear of retaliation. Indeed, Detective Hoffbeck testified that he understood Munson's request as an attempt to cut off questioning entirely, but that he did not consider this statement to be an invocation of the right to silence because Munson did not express his desire in a manner which required him to cut off questioning. Thus, we conclude that a reasonable officer in these circumstances would have understood Munson's statement that he was "done talkin'," without condition or qualification, to be an unequivocal invocation of his right to silence. Though the test is an objective one, we also note that the investigator testified at the suppression hearing that he understood that Munson "wanted to stop at that point," and that his subsequent questioning (despite Munson's request) was based on an incorrect understanding of a suspect's right to silence — the investigator believed that he had no duty to stop asking questions until a suspect asks to speak with a lawyer or actually does not answer questions. Moreover, the superior court made no express finding that Munson's request was equivocal. To the contrary, the court's comments at the suppression hearing strongly imply that Munson's request was unambiguous. Because we conclude that Munson's statement "Well, I'm done talkin' then" was an unambiguous request to terminate the interview, the question is not whether Munson's request was equivocal, but rather whether, in order for a suspect to validly invoke the right to silence, it must be clear that his reason for doing so is specifically motivated by a fear of self-incrimination.

For more discussion on the effect of a suspect's subjective motivation on his custodial invocation of the right to silence, see infra Part IV.B.

On direct examination at the suppression hearing, the investigator acknowledged that he understood that Munson "wanted to stop at that point," but indicated his belief that he had no duty to stop asking questions until a suspect asks to speak to a lawyer or refuses to answer questions.

Our review of the transcript from the evidentiary hearing convinces us that Judge Wolverton's comments are best understood to indicate that an invocation of the right to silence accords similar protections as an invocation of the right to counsel, not that Munson's request was ambiguous.

Because we find that Munson's request was unequivocal, we decline to address whether the police have an obligation to clarify an ambiguous invocation of the right to silence, and whether the dual prongs of Miranda are entitled to differing levels of protection. Instead, we focus on the core issue, which is whether Munson had a right to remain silent even if his unambiguous request to do so might have been motivated by immediate fear of a co-defendant.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ( Fifth Amendment protection against self-incrimination grants to suspect in custodial interrogation right to counsel and right to remain silent).

B. The Right to Silence Asserted by Munson Was Protected by Both the Federal and State Constitutions, Regardless of Munson's Subjective Fear of Retaliation.

We turn to the question whether a statement by a suspect that he was "done talkin'" is a valid invocation of the right to silence if it was not clearly motivated by fear of self-incrimination. If our answer is "yes," then the police investigators were bound by Miranda and its progeny to respect that right; but if the request was not constitutionally-protected, then the investigators had no duty to stop the interrogation or to clarify Munson's intentions.

We begin our analysis with the words of the Fifth Amendment to the United States Constitution and article I, section nine of the Alaska Constitution, both of which guarantee that no person "shall be compelled in any criminal [case or proceeding] to be a witness against himself." These simple words form the basis of a criminal defendant's rights to counsel and to remain silent. While the core protection is a prohibition on compelling a defendant to testify against himself at trial, Miranda and our own cases under the Alaska Constitution show that this protection is enforceable in any setting where a suspect is subject to custodial police interrogation. Indeed, because such an interrogation is inherently coercive, Miranda laid down "concrete constitutional guidelines," which include the requirement to give a defendant the four specific warnings that comprise his so-called Miranda rights. The failure to provide proper warnings or to obtain a waiver of those rights is generally sufficient to exclude any statements obtained. This rule-based approach establishes a brightline standard for admissibility of confessions; and the litmus test is not only whether the suspect voluntarily made a statement, but whether his waiver of the right to silence or to counsel was knowing and intelligent. Although Miranda's requirements sweep beyond the literal protections of the Fifth Amendment, the U.S. Supreme Court has described Miranda as a "constitutional rule." Miranda makes clear that a defendant can invoke his right to silence and end the interrogation "in any manner, at any time prior to or during questioning." If a suspect in a custodial interrogation

Id. at 439, 86 S.Ct. 1602; Beavers v. State, 998 P.2d 1040, 1045-46 n. 25 (Alaska 2000); see also Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

See, e.g., United States v. Patane, 542 U.S. 630, 638, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004).

Miranda, 384 U.S. at 477, 86 S.Ct. 1602; Beavers, 998 P.2d at 1045 n. 25.

Dickerson, 530 U.S. at 435, 120 S.Ct. 2326 (discussing Miranda, 384 U.S. at 442, 479, 86 S.Ct. 1602).

Missouri v. Seibert, 542 U.S. 600, 608, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

See Smith v. Illinois, 469 U.S. 91, 99 n. 8, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

Dickerson, 530 U.S. at 433-34, 120 S.Ct. 2326.

Smith, 469 U.S. at 95, 105 S.Ct. 490; see also Edwards v. Arizona, 451 U.S. 477, 486 n. 9, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

United States v. Patane, 542 U.S. 630, 639, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004).

Dickerson, 530 U.S. at 444, 120 S.Ct. 2326.

Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries . . .

Subsequent decisions by the U.S. Supreme Court have clarified the state's duties when a suspect invokes his Fifth Amendment rights. A defendant has the right not only to cut off questioning entirely, but also to "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation." Additionally, the police must "scrupulously honor" a suspect's invocation of the right to silence.

Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Id. at 104, 96 S.Ct. 321. Cautioning against the "absurd and unintended results" that could flow from unreasonably literal interpretation of Miranda, the Mosley Court held that while Miranda did not require the perpetual cessation of interrogation after a suspect has invoked his right to silence, neither did it "permit a resumption of interrogation after a momentary respite." Id. The Court did not define precisely what it meant by "scrupulously honor[ing]" a suspect's invocation of the right to silence, but it found that Mosley's rights were fully respected because, after he invoked his right to silence, the officer ceased questioning him entirely and, after a delay of more than two hours, Mosley was re-Mirandized by another officer and interviewed about a separate crime. Id. at 104-06, 96 S.Ct. 321. The court found these actions to be sufficient because it saw no evidence that the police had failed to respect a request to cut off questioning or had made repeated efforts to "wear down his resistance and make [the defendant] change his mind." Id. at 105-06, 96 S.Ct. 321.

"No ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination;" all that is required to invoke Miranda's protections is a statement with sufficient clarity that a reasonable police officer in the circumstances would understand it to be an invocation of the suspect's rights. To validly invoke the privilege, the suspect must face some hazard of incrimination, but this threshold requirement is met whenever "the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction."

Emspak v. United States, 349 U.S. 190, 194, 75 S.Ct. 687, 99 L.Ed. 997 (1955).

Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993) (quotation omitted).

Thus, a proper invocation of the privilege against self-incrimination under Miranda requires only three things: a custodial interrogation, a statement that would reasonably be understood as an invocation of the privilege, and the clear possibility from the context of the interrogation that a responsive answer "might be dangerous because injurious disclosure could result." Once a suspect makes "an attempt to cut off questioning entirely," his request must be "scrupulously honored." In the face of an unequivocal invocation of those rights, police interrogators have very limited discretion to inquire into the defendant's subjective intent because they cannot, even to clarify a suspect's intent, "wear down his resistance and make him change his mind." These principles convince us that a suspect in a custodial interrogation can validly invoke his rights even if he may be motivated by a reason other than preventing self-incrimination. That is, so long as the suspect's apparent motives do not cast genuine doubt on his desire to stop questioning entirely, then the issue of why he wants to do so is constitutionally irrelevant: the officer must scrupulously honor the suspect's request.

Miranda, 384 U.S. at 477, 86 S.Ct. 1602.

Davis, 512 U.S. at 459, 114 S.Ct. 2350.

Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

Vail v. State, 599 P.2d 1371, 1378 (Alaska 1979).

Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Id. at 106, 96 S.Ct. 321.

To the extent that this interpretation may be more protective than federal constitutional law, we base our ruling on article I, section 9 of the Alaska Constitution. See Beavers v. State, 998 P.2d 1040, 1046 n. 30 (Alaska 2000). While we have observed that the language of § 9 is "virtually identical" to the wording of the Fifth Amendment of the United States Constitution, Biele v. State, 371 P.2d 811, 813 n. 6 (Alaska 1962), we have interpreted § 9 more broadly than the U.S. Supreme Court has construed the Fifth Amendment of the Federal Constitution. Scott v. State, 519 P.2d 774, 785 (Alaska 1974). In so doing, we noted our "responsibility to depart whenever necessary from constitutional interpretations enunciated by the United States Supreme Court and to develop rights and privileges under the Alaska Constitution in accordance with our own unique legal background." Id. at 783. We do so because "[w]e are not bound to follow blindly a federal constitutional construction of a fundamental principle if we are convinced that the result is based on unsound reason or logic." Id.
More recently, in State v. Gonzalez, 825 P.2d 920 (Alaska App. 1992), the court of appeals expressed hesitation to blindly adhere to changes in federal constitutional law where unexpected decisions of the Supreme Court "`have forced a serious reevaluation of . . . fundamentals.'" Id. at 931 (internal citations omitted). Ultimately, the court concluded that "[t]he United States Supreme Court's decisions interpreting the fifth amendment do not decide the meaning of the Alaska privilege, and similarity in language does not make the United States Supreme Court the primary interpreter of article I, § 9." Id. (The court of appeals accordingly declined to adopt the Court's decision to allow use and derivative use immunity to act as a substitute for the privilege against self-incrimination or transactional immunity. Id. at 936.)

The bright line rules articulated by Miranda and its progeny exist precisely because it is inappropriate to require the police to make difficult judgment calls about a defendant's underlying motivations for invoking his rights. It will not always be apparent whether a suspect is attempting to cut off questioning to prevent self-incrimination; or because he is emotional, tired, angry, confused, frightened, or overwhelmed; or because of a combination of reasons. And the cost of clarification is simply too great: Not only would inquiry into a suspect's motivations prove a quagmire for police interrogators, but it would radically diminish Miranda's protections. Almost every invocation of the right to silence or to counsel could contain some ambiguity on the suspect's motives. If the police were permitted to aggressively inquire into a suspect's subjective intent for invoking the right, the suspect could well believe that his rights are illusory. While the context of Munson's statement suggests that he was more likely afraid of Sam Camanga than of incriminating himself, it was not for the interrogator to speculate about Munson's motives because the request itself was entirely unambiguous. The circumstances surrounding Munson's interrogation demonstrate that this approach provides the clearest possible guidance for applying the requirements of Miranda and Mosley during a custodial interrogation.

Davis, 512 U.S. at 461, 114 S.Ct. 2350.

See, e.g., Mallott v. State, 608 P.2d 737, 741-43 (Alaska 1980) (ignoring or rebuffing suspect's invocation of his rights will convince him that such rights are illusory).

The transcript of the interrogation shows just how relentless an interrogator can be when attempting to clarify a suspect's invocation of his rights. From almost the moment Munson's interrogation began, he was told that invocation of his rights was irrelevant since the police already had evidence linking him to the crime, including the tape recording in which Munson acknowledged his presence when Gorsche was killed. After reading Munson his Miranda rights, but before seeking a waiver of those rights, Detective Hoffbeck laid out his case against Munson.

[Interrogator]: Ok. Now having these [ Miranda] rights in mind now I wanta ask you . . . I wanta tell you basically a couple of things that we . . . that we know about.

[Munson]: Uhhuh.

[Interrogator]: And then at the end of that there if you wanta talk to us you can talk to us, OK?

[Interrogator describes the evidence the police have collected, including the incriminating tape of Munson discussing the crime with a co-defendant.]

[Interrogator]: Ok? So we have all that information about you . . . the choice is up to you . . . you wanta talk to us about it?

[Munson]: I have a question about that. What happens to me if I talk to you guys?

[Interrogator]: Whether you talk to us or not, the same thing is gonna happen to ya.

[Munson]: So if I don't say anything . . . the same thing'll happen to me?

. . . .

So I'm gonna go to jail?

[Interrogator]: Of course, yes, you're going to go to jail.

[Munson]: And it doesn't matter if I talk or anything? Right?

At this point in the conversation, Detective Hoffbeck informed Munson that his cooperation could have an impact on how a judge approached sentencing, and he began to ask questions about the crime. Only when Munson began to answer his questions did the investigator ask if he was willing to speak with him. But when Munson attempted to revoke his waiver, and to assert his right to silence, Detective Hoffbeck again tried to convince him of the futility of remaining silent.

[Munson]: What's gonna happen? Is Sam gonna know I'm saying this?

[Investigator]: Maybe Sam's already talked to me.

[Munson]: No, but . . .

[Investigator]: Eventually Sam is going to know, yes . . . the answer to that is yes. Everybody . . . everybody involved is going to know eventually . . . yes they will.

[Munson]: Well, I'm done talkin' then.

[Investigator]: Before you make a final decision on that there . . . play that tape there for him. . . .

[Tape playing in which Munson acknowledges that he was present when Gorsche was killed.]

[Investigator]: You've already said it . . .

[Munson]: I know but . . .

[Investigator]: So what's the point? You've already said it so . . .

Although the state conceded below that "a defendant can invoke his right to silence for any reason — even a whim — and the police must respect his decision," the state nonetheless maintains that Munson never invoked his constitutional rights because his request was motivated by a fear of Sam Camanga and, thus, equivocal. The state argued below that the investigator clarified Munson's equivocal request by playing the recording of his incriminating discussion with a co-defendant, and that Munson's later confession demonstrated that his concerns were allayed and his statements were voluntary. But the overall impact of the investigator's comments, as well as his specific response to Munson's request to terminate the interrogation, demonstrate the inherently coercive nature of a custodial interrogation and reinforce the need for clear standards to govern an interrogator's conduct in the face of a suspect's invocation of his Miranda rights.

We note that Detective Hoffbeck himself had a different understanding of Miranda's requirements. He testified that, in order to invoke his Miranda rights, a suspect must either ask for an attorney or stop talking; but a suspect's statement that "I'm done talking," "I've got nothing more to say," or "I'm — finished, I quit" imposes no duty on an investigator to stop asking questions. While a more limited statement than "I'm done talkin' then" might reasonably be construed as equivocal, i.e., to express an unwillingness to speak with a particular interrogator or to respond to a particular inquiry, 2 W.R. LAFAVE, ET AL., CRIMINAL PROCEDURE § 6.9(g) at 606 (2d ed. 1999), there is no basis to interpret Munson's broad statement as anything but an unconditional request to cut off all questioning.

While it is the centerpiece of the state's position that Munson's request was equivocal, it is clear that Detective Hoffbeck understood that Munson was trying to cut off questioning entirely. Indeed, in his suppression hearing testimony, the investigator never claimed confusion or uncertainty concerning Munson's desire to stop the interrogation. Yet instead of scrupulously honoring what literally was a present-tense, unequivocal, unconditional attempt to cut off all further questioning, the investigator brushed off Munson's decision and insisted that Munson needed to make yet another decision — a " final decision": "Before you make a final decision on that there . . . play that tape there for him. . . ." The investigator then set in motion a prepared playback of a surreptitiously recorded conversation between Munson and a police informant; the playback was apparently intended to persuade Munson that his decision was wrong: that he might as well talk because the police had already secretly recorded him, he was already exposed, and — in the investigator's opinion — he didn't need to be afraid in any event. By the standard established in Rhode Island v. Innis, the investigator's tactic unquestionably amounted to further interrogation.

On direct examination at the suppression hearing, the investigator acknowledged that Munson wanted to stop the interrogation, but indicated that he didn't view this as an invocation of the Miranda rights; the only reason he suggested for this view was that Munson's decision to stop appeared motivated by fear:

Q. Okay. And there also came a point, and I pointed it out to you where he indicated that you were talking to him about Sam Kamanga (ph) and the others are going to learn basically what he's saying. Do you remember that?

A. Yes.

Q. Okay. And do you remember what he said in reply to that once he kind of learned that Mr. Kamanga (ph) was going to learn what it was that he was telling you?

A. He said that he didn't want to talk anymore.

Q. Okay. And what did you take that as? I mean, did you accept — did you think that he was invoking his Miranda rights, for instance?

A. No.

Q. What did that mean to you when he said that?

A. He wanted to stop at that point, I think is what he — I got the impression that he didn't really want Sam to hear what he had to say. And so at that point then he says, no, I got nothing — I don't — I want a — I forget exactly the — the words he said. But I said, before you make up your final mind, listen to what — what's on this tape here.

(Emphasis added.)
Returning to this issue in his cross-examination, the investigator cemented the point that he hadn't seen anything circumstantially ambiguous in Munson's desire to stop questioning, but merely felt that Munson did not express his desire in a way that required the investigator to cease the interrogation:

Q. . . . So when Paul said, I'm done talking, then, you didn't say, do you mean you want to stop talking, did you?

A. Nope.

Q. Probably because that would have sounded kind of stupid since he just said I'm done talking, right?

A. Is that a question?

Q. Yeah, that was a question.

A. Well, what was your question again?

Q. My question was if someone says to you, I'm done talking, to ask them are you done talking . . .

A. They — I've heard that said to me many times in an interview . . .

Q. No . . .

A. . . . I've got nothing more to say, I'm — I'm finished, I quit.

Q. Uh-huh (affirmative). And do you always just keep right on interrogating?

A. Until they ask to — to talk — for a lawyer or something, I do, yeah.

Q. I see, okay. So to you there's no distinction between saying, I'm done talking, that — it doesn't matter until they ask for a lawyer, is that what you're . . .

A. No, no, because — go back to the rights there. It says you can stop talking at any time.

This testimony does not suggest any misunderstanding of Munson's request. In the investigator's view, Munson was free to exercise his Miranda right of silence by refusing to answer at any time, but he could not prevent continued interrogation unless he expressly pinned his decision to a request for counsel. (Or perhaps, viewing the testimony most charitably to the investigator and in the light least favorable to affirming the superior court's decision, it might have been enough for Munson to have pinned his decision to his specific intent to invoke his right against self-incrimination, excluding all lesser reasons; but even under this charitable view, Munson could not have forced interrogation to stop merely for fear of reprisals.) Despite recognizing that Munson had made a clear request to end the interrogation, then, the investigator nonetheless felt that Munson had failed to invoke his Miranda rights because he had failed to come up with the right reason for stopping: it was up to Munson to cease answering under these circumstances, the investigator believed, not up to him to cease questioning. As the superior court implicitly recognized, the investigator's testimony — however well-intentioned it might have been — simply betrayed a fundamentally incorrect understanding of Mosley's requirement that police conducting a custodial interrogation must scrupulously honor any clear attempt by the defendant to cut off questioning entirely.

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (defining "interrogation" under Miranda to include "any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response").

The court of appeals seems to have assumed that Munson's desire to cut off questioning became equivocal because he evidently acted for a specific reason other than the one specified by the constitution: avoiding self-incrimination. Yet this tacit premise does not hold up to scrutiny. Under Miranda, a defendant like Munson does not need to radiate constitutionally pure motives; he just needs to make a clear attempt to stop questioning entirely. If his apparent motives do not cast genuine doubt on what he wants (that is, to stop questioning entirely), then the issue of why he wants it is constitutionally irrelevant: the officer must scrupulously honor the defendant's clear attempt to cut off questioning entirely.

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

To be sure, a defendant may not assert the right to silence when the privilege against self-incrimination does not attach to the questioning. But for purposes of determining whether the privilege attaches, our case law requires us to pose a situation-specific, not a motive-specific, question. We do not inquire what reasons prompt the defendant's refusal to speak; we simply ask whether the state's questions present a real risk of incrimination:

To establish a Fifth Amendment claim, parties invoking the privilege have the burden of demonstrating a valid reason to believe that their compelled statements might incriminate them. This burden is not great: "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."

Miranda itself recognizes that custodial interrogation inherently poses a sufficient danger of incrimination to sustain the privilege. Here, Munson was subjected to custodial interrogation and was read his Miranda rights. Because the interrogation certainly placed him at risk of self-incrimination, the privilege unquestionably attached. He had a right to invoke it by expressing a clear desire to cut off the interrogation entirely, regardless of his subjective intent in doing so.

Of course Munson's apparent motives would have been relevant if the totality of circumstances surrounding the interrogation, including his apparent motives, cast genuine doubt on his desire to stop the questioning completely. LaFave recognizes that sometimes, "[d]epending on the surrounding circumstances, even a statement which itself appears to amount to an assertion of the right to remain silent (e.g., `I ain't saying nothing') may be held to [be ambiguous or equivocal]." But as LaFave indicates, the ambiguity in these situations must arise from contextual circumstances suggesting that the defendant's reluctance "is much more limited" than wanting to stop the interrogation entirely. Hence, if Munson's apparent fear, combined with other relevant circumstances, created a reasonable appearance that his categorical announcement that he was "done talkin'" was merely a tentative decision — or that it was fleeting, conditional, or even concealed a true desire to be questioned — then certainly his attempt to cut off questioning might fairly be characterized as ambiguous or equivocal.

2 W.R. LAFAVE, ET AL., CRIMINAL PROCEDURE § 6.9(g) at 606 (2d ed. 1999).

Id. at 607. The cases the state cites as involving invocations of Miranda that were deemed ambiguous despite being clear in the literal sense support LaFave's assertion, generally describing circumstances that made the literal requests to stop questioning appear to be "much more limited" in their intended meaning. Id. at 607-09 and nn. 138-44. LaFave notes:

As for assertion of the right to remain silent, any declaration of a desire to terminate the contact or inquiry (e.g., "Don't bother me") should suffice. The same is true of silence in the face of repeated questioning, or an effort to end the contact with the interrogator. On the other hand, a statement which is much more limited in the sense that it expresses an unwillingness to respond to a particular interrogator . . . or an unwillingness or inability to respond to a particular inquiry . . . is not a general claim of the privilege.

Id. at 606.

But here, as already noted, the circumstances hardly lend themselves to this characterization: Munson's announcement itself unequivocally and unconditionally declared his decision to cut off questioning; and the surrounding circumstances, including Munson's apparent motive for stopping, left little room for confusion. As noted, the investigator never claimed that he saw anything equivocal, ambiguous, or conditional about Munson's desire to stop questioning entirely. He understood that Munson wished to stop the questioning but erroneously thought that he was free to press on despite Munson's wishes unless and until Munson formally invoked his Miranda rights by either asking for counsel or by refusing to continue talking. Nothing in the circumstances surrounding Munson's declaration, in Munson's apparent motives for making the declaration, or in the declaration itself gave the investigator any reasonable basis to think that Munson was not making "a final decision" or that he was trying to do anything other than what he expressly declared that he wanted to do — to cut off the questioning entirely. At this point, Miranda and Mosley required the investigator to scrupulously honor the request, and precluded him from simply pressing on with his interrogation.

While the Miranda test is an objective one — that is, the court must objectively evaluate whether Munson's demand to stop talking was equivocal under the totality of the circumstances in which it was actually made — we believe that an understanding of the investigator's subjective state of mind is relevant to our inquiry, for it tends to show how a presumably reasonable officer with a first — hand view actually did understand the defendant's request to stop talking. Because the officer's subjective impression — here, that Munson wished to end the interrogation — coincides with our own, it tends to confirm that our impression of the record is an accurate assessment of what a reasonable officer would think.

Munson's statement of "Well, I'm done talkin' then" could be viewed as a conditional assertion of silence — that is, that Munson would not speak to the interrogator unless he was first granted protection from his co-defendant. Without deciding whether and to what extent an interrogator may respond to a conditional invocation, we note that the investigator's response to Munson's statement was in no way an inquiry into whether the interrogation could continue if the condition were satisfied. Rather, his response was simply directed at persuading Munson to withdraw his otherwise unequivocal invocation.

The investigator's determination to ignore Munson's request seems particularly unreasonable when considered in light of the approach used in the interrogation leading up to Munson's request. The investigator began the interrogation by reading Munson his Miranda rights and asking if he understood them. But instead of asking immediately whether Munson wanted to invoke these rights, the investigator purposely delayed this question, saying that Munson would receive the opportunity to invoke his rights later, after the investigator provided some additional information. He then began to give Munson information that by any objective measure was bound to encourage cooperation, engage him in discussion, and produce incriminating statements. The additional information also created a considerable gap between the reading of Munson's rights and his opportunity to invoke them. In conducting the balance of the interview, the investigator believed Miranda required him to stop the interrogation only if Munson actually refused to talk or expressly invoked his right to counsel; on appeal, however, the state takes a different position. Despite the gap between the reading of Munson's Miranda rights and his first opportunity to assert them, the state now contends that Munson could invoke his rights only by making a demand to stop talking that clearly drew a connection between his desire to stop and his by-then-distantly read rights. But this position would allow the competitive enterprise of custodial interrogation to be carried a step too far.

Viewed against this backdrop, the investigator's perfunctory dismissal of the clear and unequivocal attempt to cut of all further questioning, and his insistence on a new round of interrogation before allowing a "final decision," could easily have convinced Munson that the investigator was determined to keep pressing his interrogation and was bound to deny Miranda's "critical safeguard": Munson's ability to "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation." Upon hearing the demand for a "final decision," any reasonable person in Munson's position would have recognized that his Miranda rights were merely illusory because the investigator had seized full control.

Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Miranda exists to protect the rights of the criminally-accused in precisely these situations. An interrogator cannot try to convince a suspect that his silence is futile; the police cannot fail to honor a suspect's request by "refusing to discontinue the interrogation . . . or by persisting in repeated efforts to wear down his resistance and make him change his mind." Nor, as the prosecutor implied below, can Munson's confession be deemed voluntary by the fact that he continued to speak with the interrogators after the tape was played. As the U.S. Supreme Court has emphasized:

Id. at 105-06, 96 S.Ct. 321.

Using an accused's subsequent responses to cast doubt on the adequacy of the initial request itself is . . . intolerable. "No authority, and no logic, permits the interrogator to proceed . . . on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all."

That Munson continued to talk with the interrogator in the face of continued questioning does not diminish the validity of his request. Munson's constitutionally-protected right to silence attached as soon as he said "I'm done talkin'," and at that point the interrogator was bound to "scrupulously honor" Munson's request. Such bright-line rules exist both to protect the accused as well as to provide clear standards to guide law enforcement officers and the courts.

The Sixth Circuit reached a similar conclusion in McGraw v. Holland. Tina McGraw was sixteen years old when she was charged as an accomplice to a rape. In response to a police interrogator's questions, she stated: "I don't want to talk about it," and she indicated that her reason for not wanting to discuss the crime was because she didn't want "to walk the streets and get shot and killed for tellin.'" The Sixth Circuit suppressed the resulting confession in part because it found "no support, either in logic or in law, for the proposition that an otherwise unambiguous expression of a desire to remain silent can somehow become ambiguous if prompted by a fear of retaliation." That the defendant's fear was so apparent should have made it "even more clear that she really did not want to talk about the rape."

257 F.3d 513 (6th Cir. 2001).

Id. at 514.

Id. at 515.

Id. at 519.

Id.

We agree with the Sixth Circuit that an otherwise unambiguous invocation of the right to remain silent does not become ineffective merely because it appears to be motivated by fear of retaliation.

V. CONCLUSION

Because Paul Munson unambiguously invoked his right to remain silent, and because the police interrogator failed to scrupulously honor this request, we conclude that Munson's subsequent confession to the crime must be suppressed. Accordingly, we REVERSE the judgment of the court of appeals and REINSTATE the judgment of the superior court.

APPENDIX

Statement of:

HOMICIDE S-PAUL MUNSON

Q = DETECTIVE HOFFBECK

D = DETECTIVE PARKER

A = PAUL MUNSON

Q. This is on file # 99-46526. Today's date is September the 15th, 1999. This is DETECTIVE HOFFBECK and DETECTIVE PARKER in Portland, Oregon, the time now is uh . . . approximately . . . and uh. . the time, local time is approximately 7:30 p.m. and I'll be talking to Paul MUNSON in just a moment.

UM. ________

Q. Thanks.

UM. ______________

Q. OK. . Paul let me introduce myself to you.

A. OK

Q. I'm DETECTIVE HOFFBECK. . Anchorage Police Department. .

A. Hi.

Q. This is DETECTIVE PARKER. Anchorage Police Department. .

D. Same place. .

A. Oh your mister. . Dave PARKER? Oh yeah. .

Q. Paul you saw there's a tape recorder there running?

A. Uhhuh.

Q. And uh you've been arrested. . let me see a copy of that uh warrant over there please. . you were arrested over at the Viking Hotel here uh . . . oh prob'ly about an hour or so ago now, cause the time now is. . I got about Uh 20 minutes to 8 Portland time. Gonna show you an arrest warrant for your arrest, Paul. . are you Paul MUNSON, date of birth of 12-21 of '81?

A. Uhhuh.

Q. OK. Read English are you Paul?

A. Yeah.

Q. OK. Let that read there for ya . . .

A. Murder one. .

Q. Conspiracy to commit murder one.

A. Yeah.

Q. OK. So basically uh you're charged with murder in the first degree and conspiracy to commit murder in the first degree. Your bail is set at $500,000 cash only. And defendant may not be released until court approves a third party custody. This is an Alaska warrant. Obviously you know we're not in the State of Alaska.

A. Uhhuh.

Q. We're in the state of Wash. . or Oregon. OK? We have to follow not only Alaska laws, but the Oregon laws, OK?

A. Uhhuh.

Q. But the first thing is since you're in this room. . uh that just indicates in our computer that you're mother reported you as a runaway also. Paul, I want to uh, I wanta talk to you about some things.

A. Uhhuh.

Q. I wanta talk to you about the homicide that took place up in Anchorage, is what I wanta talk to you about. Before I can talk to you about anything. . _____ you're well aware of what I have to do. I have to read you your Constitutional Rights.

A. Yeah. . Yeah. .

Q. That there. I'm gonna read those there to you in a few minutes here. . but before. . when I get finished here even. . before you even start to say anything at all. . there's a couple of things I wanta say to you before. . before that goes on there, OK? OK. . You have the right to remain silent, do you understand that? Paul?

A. Yes.

Q. OK. Anything you say can and will be used against you in a court of law, you understand that?

A. Uhhuh.

Q. You do?

A. Yeah.

Q. OK. Now the tape recorder doesn't pick up some times when you nod so. .

A. Oh OK.

Q. So if you say it, I'd appreciate it. .

A. Huh. .

Q. You have the right to talk to a lawyer and have him present with you while you're being questioned if you under. Do you understand that?

A. Yes.

Q. OK. if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one, do you understand that?

A. Yeah.

Q. OK. Now keep in mind here, all these questions. If you have any questions about any of these here, please ask me about 'em, OK?

A. OK.

Q. You can decide at any time to exercise these rights and not answer any questions or make any statements.

A. Yeah I know. .

Q. You understand. . you understand that?

A. I. . uh uh(?)

Q. OK. Do you understand each of these rights as I've explained them to you?

A. Yes . . .

Q. OK. Now having these rights in mind now I wanta ask you . . . I wanta tell you basically a couple things that we. . that we know about.

A. Uhhuh.

Q. And then at the end of that there if you wanta talk to us you can talk to us, OK? One. . let me lay out some. . Just some basic, basic things to you. . I'm not gonna tell you everything that I have right now . . . and I think you prob'ly know a lot of the things I do already have. First of all I have your car in custody. That was the car that was used to transport Wolfie out to Eklutna. OK? We've already search the car and we found a ton of evidence already in that car. We've already located the shell casing that was found out there, and we've matched it up to the gun that your friend, Sam used to shoot him with, alright? We've already done all those type of things. We've already got statements from uh. . we've got statements from Bryan, course you already knew that there. And we've also got statements from somebody else, and I'll let you hear about those in just a few minutes here, OK?

A. Nn.

Q. And on those statements there that I'm gonna let you hear, you're gonna hear you own voice on there, because we were listening to all your phone calls. .

A. Ahh.

Q. OK? So we have all that information about you. . the choice is up to you. . you wanta talk to us about it?

A. I have a question about that? What happens to me if I talk to you guys?

Q. Whether you talk to us or not, the same thing is gonna happen to ya.

A. So if I don't say anything. . the same thing'll happen to me?

Q. Well, let's put it this way here Paul . . . when we are finished speaking, whenever that is. . whether it's in 5 minutes or if it's in a half hour or whenever it is, you're going to go to a uh. . a juvenile facility here in. . in Oregon.

A. Uhhuh.

Q. And then tomorrow you're prob'ly . . . I think the Oregon law is that you're goin' be brought before some type of a hearing at that time. . to find out how you wanta go back to Alaska. Whether you're going to volunteer to go back to Alaska or be extradited to go back to Alaska.

A. Uhhuh.

Q. And then you'll be. . once those hearings are over and if it's granted then you'll be taken back to Alaska at that particular time.

A. So what'll happen to me in Alaska?

Q. You'll be held accountable to answer to those charges of murder in the first degree and what's the other one there uh. .

D. Conspiracy to commit murder. .

Q. And uh conspiracy to commit murder in the first degree. . you're going to be held accountable for those. . if. . you're charged with those.

A. So I'm gonna go to jail?

Q. Of course, yes, you're going to go to jail.

A. And it doesn't matter if I talk or anything? Right?

Q. Well that. . that's up to you y'know . . . it's really up to you. . let me give you kind of a uh. . of a scenario about something here. . now keep in mind when I read there, no promises or threats are being made to you here . . . if you were sitting up on a bench and a judge _______ right?

A. Uhhuh.

Q. This is just a thought here, if you were sitting up there, and you had two people come in front of you. . one was being cooperative and the other one wasn't. . how would you feel about that?

A. Uh. . I'd wanta be the cooperative one. .

Q. I'm not tellin' you what to do.

A. I. . I know but I . . . see. .

Q. And I wanta ask you some questions about what happened out there that night. Why. . actually I wanta know why in the world you of all people, went out there with `em. . it befuddles me to know that there. . I can understand why the other ones went out there, but I'd like to hear what you got to say about it. And only you can tell me about that. No one else can read your mind, but that's your choice. . maybe it's a simple answer, maybe it's a complicated answer. Maybe you think it's something to do with your home life. Maybe it's something to do, you got caught up with that night. . y'know? I don't know. . I don't know. . Show you a list of names, I'm sure you could recognize a lot of those names. . Those are the names of the people we've already talked to. . You wanta look at that again?

A. Yeah. Is this all of `em?

Q. No, that ain't all of `em. . That's just the list that I'm. . showing you right there at this time. . why did you go out there that night? Somebody threaten you to go out there?

A. No. I don't know why we went out there. .

Q. Maybe you don't know why "we" went out there, but why did you go out there?

A. Why did I go out there?

Q. Yeah.

A. Cause I had the car.

Q. Your car. .

A. That was it. .

Q. Now earlier in the night. . you willin' to have this conversation with me?

A. Uhhuh.

Q. OK. That's a yes, right?

A. Yes.

Q. OK. Earlier on in the day time when you guys were drivin' around, you and Sammy and uh. . and Shane, Bryan, Jack . . . drivin' around uh. . the subject of killin' Wolfie came up many times. . even went over and met the niece. The little girl that was molested. The subject of uh mutilating Wolfie's hands and uh cutting his fingers off. . murdering him. .

A. I didn't say one thing. .

Q. Well, I don't know, you tell me what happened. . I wasn't in the car. I wasn't in the car Paul. DETECTIVE PARKER wasn't in that car. . it's. . how old are you now?

A. Seventeen

Q. You'll be 18. . uh. . December?

A. Yeah

Q. You got a long. . long life ahead of you. . where you spend it at's. . I don't know where you're gonna spend it at. . the. . the manner of . . . what went on in the car there and the conversations that took place out at. . uh. . out at Point Woronzof and the apartments up in uh. . your apartment up in Mt. View. .

A. Uhhuh.

Q. Um, I'd like to hear `em. .

A. What do you want know?

Q. Well, it's your story. . why don't you start at the beginning of it and tell me the story. .

A. Well. .

Q. How about. . how about when you first. . did you ever go, do you know uh, do you know these people? do you know uh. .

A. Know everybody on the _______ sheet.

Q. Huh?

A. I said I know everybody on the _______ sheet. .

Q. On this uh yellow sheet there's a Cherylin MITCHELL, Joanna PFEIFER uh Lynette. . Brandi.

A. Uhhuh.

Q. Uh Jack RUTHERFORD, Bryan RUTHERFORD. . Souvang, Khamkeo. . Sommith, Paul of course, and Sam. You know all those names?

A. Yeah.

Q. Tell me how you uh. . how you got to know uh Sam? Let's start with that one there?

A. Uh. . me and Shane met him at a party. . and he. . he was. . he was uh. . uh. . I guess. . cousins of whatever with Eddie. . the other roommate.

Q. Yeah.

A. And then he became our roommate, and that's how we ________

Q. Where were you living at the time uh. . Paul?

A. My house. .

Q. And that's over there in uh Jewel Lake?

A. Yeah.

Q. You and your mom?

A. Yeah.

Q. Anybody else living there with you?

A. Huh-uh

Q. You had your own car at that time?

A. Yeah.

Q. What kinda car did you have?

A. Honda Civic

Q. You by chance remember the license number of it?

A. No, I have no clue.

Q. OK. Is that uh. . what year is it?

A. '90.

Q. What color is it?

A. Black, four door sedan.

Q. OK. You call it black?

A. Uhhuh . . . Or gray or. .

Q. Yeah. . with a. . yeah. . would it surprise you the registration says gray on it?

A. Yeah.

Q. OK. Where's that car. . where do you think the car is at now? I just told you where it's at. . but where did you think it was at?

A. Well I knew it got impounded. . because I got pulled over with it.

Q. Right, your mom had it moved to some place and then it was taken some place else. .

A. Yeah I. . when she. .

Q. Then the police. .

A. The last time I saw it was at Polaris. .

Q. OK.

A. That was the last time I saw it. . So I. .

Q. And that was. . when was that?

A. Oh I don't know. .

Q. That was the night after the murder wasn't it?

A. Nn-nn(Negative). . no it wasn't.

Q. It was about 1:15 in the morning the following night. . is when it was. . your car broke down there and uh two patrol officers came by and . . . I think they gave you a citation for curfew and took you home?

A. Huh-uh. . they didn't give me a curfew ticket.

Q. They didn't give you one? OK. . Thank you for clearin' that up, I was under the impression you did. . gave you a ride home though did they?

A. Uhhuh.

Q. OK. . so then that's how you met Sam, right?

A. Yeah. . ___________

Q. Do you remember when that was?

A. N, I had. . not good with dates. I don't know.

Q. Give me, give me approximation, do you? Approximately when it was? I'm not gonna hold you to the date on that. .

A. I don't know, like a month.

Q. So maybe this is the . . . 15th of um . . . September. . so. . more than a month ago now?

A. Yeah. . more. . more than a month.

Q. Like first part of August or. .

A. I guess. . I don't. .

Q. Would that be about right though?

A. I don't know. . well it was before school started. .

Q. Well that was the end of uh. . end of August so. .

A. I know. . before school.

Q. Did you. . so then you eventually you moved over to the. .

A. No, I was always there. . I . . . I always been over there, like every. . before he was there. .

Q. Before Sam moved in?

A. Oh yeah. . I was there all the time.

Q. You and uh Shane and uh. .

A. Yeah. . that's how. .

Q. And Eddie?

A. Me and Shane were there together.

Q. Uhhuh . . . want some water?

A. No, no thanks.

Q. OK.

A. That's how we got there. .

Q. OK. What um. . when did the gun start showin' up? After Sam showed up?

A. Well. . I. .

Q. Or were they there. . or were they there before that. . before Sam showed up?

A. There was none there before. . I . . . they. . they kept on say that there was guns in the house y'know. . and they'd(?) fire 'em, but there never was, cause me and Shane tried to check y'know where they were. . where he said they were.

Q. Uhhuh.

A. But I don't. . the first time I saw `em was uh . . . can't remember . . . First time I saw'em was . . . we were outside, outside the apartment. . it was Shawn(?)

Q. Is that when one of the drive-bys came by or su'um. . and the shooting started?

A. No, that was. . that was just. . it was just the first time. . that Vi came over and there and they were. .

Q. Who brought 'em over?

A. Sam

Q. Sam brought `em over? How many did he bring over that time?

A. What?

Q. Guns. .

A. I saw one. .

Q. What uh. . what was that?

A. Think it was the 9 mm. . or was .45, I don't know.

Q. Well, both of those type show up there so. . which one is the first one, do you remember?

A. I think it was the .45.

Q. .45?

A. Uhhuh. What's gonna happen? Is Sam gonna know what I'm saying this?

Q. Maybe Sam's already talked to me.

A. No, but. .

Q. Eventually Sam is going to know, yes. . the answer to that is yes. Everybody. . everybody involved is going to know eventually. . yes they will.

A. Well, I'm done talkin' then.

Q. Before you make a final decision on that there. . play that tape there for him. .

A. You know what'll happen to me.

Q. Listen to this here . . . not what you think is going to. .

Tape playing within a tape:

UM. __________ I don't know dude. . uh dude.

UM. Alright I . . . I have some questions I have, because I'm just trippin' about this whole thing. . did you see Wolfie's freakin' head explode when Sam shot him?

UM. Yeah.

UM. You did?

UM. Uhhuh

UM. Because I'm just. . cause I. . I looked away and I looked up at Bryan and I'm just tryin' to figure out what's happenin' and everything. .

UM. So you didn't see _______ there?

UM. No.

UM. I was watchin'_______ the whole time.

UM. You were watchin'?

UM. I was there. . yeah I watched the whole thing. I wasn't too far away. .

UM. You were like pretty close to Sam huh?

UM. __________ Yeah. . when when'd you dream about dude?

UM. Just about.

Q. You've already said it. .

A. I know but. .

Q. So what's the point? You've already said it so. .

A. You don't. . you don't understand . . .

Q. What do I don't understand?

A. All those people.

Q. What do you think? What do you think that I don't understand. .

A. You don't. .

Q. No, no. . you've got something in the back of your mind that you think you've magnified. . Sam has got you runnin' scared about something. . you think is going to happen. . I'm tellin' ya. . you think is gonna happen. . let me tell you su'um what's really gonna happen. nothin's gonna happen. . Ain't a dang thing gonna happen.

A. How do you know that?

Q. I been doin' this for about 30 years.

A. Uhhuh.

Q. Right? It's never happened. . it don't happen. . only in your figment of your imagination does it happen. Because. . and you know why. . they do this. . people like Sam. . say that there. . to keep you quiet, that's the only reason. . Cause when we get finished with talkin' with Sam. . again here when we talk to Sam and some more of these. .

A. So have you already talked to Sam?

Q. I've talked to Sam. .

A. Can I hear his tape?

Q. No. . Sam's not gonna hear your tape tonight either. No he's not . . . next time you see Sam will be somewhere in some hearing Alaska. . You have no reasons at all, because every one of these people turn around and they all try to do the best thing for themselves. .

A. Let me ask you a question.

Q. You can ask any question you want. .

A. You guys have Shane, right?

Q. You bet.

A. I thought so.

Q. You wanta ask some more questions and I'll tell you the truth too, I'm not gonna lie to anybody. . do I have Bryan? You bet.

A. Oh I know you guys have Bryan. .

Q. Do you wanta ask some more questions?

A. Is he in Fairbanks?

Q. I'm ain't gonna tell you where he's at. .

A. No, I just. . I just. .

Q. But the answer to that's no.

A. So you guys are the ones that had Shane call us. . Hnn. . yeah. .

Q. Prob'ly did. Does that make Shane a bad person?

A. No it don't. . I . . . I. .

Q. Shane goin' in farther than you are. .

A. Why?

Q. Shane's charged more than you are.

A. So I'm the lightest?

Q. Yeah. You're the light. you're the light weight of this bunch.

A. What's Shane and Bryan have?

Q. Bryan's idea, wasn't it?

A. Yeah. .

Q. Yeah. . it was his idea to do all this stuff.

A. __________

Q. Shane was packin' a gun that night and he drove the car. . and as far as I know about Paul, he just provided the car. .

A. Yeah.

Q. Right?

A. Uhhuh. That's it.

Q. That's it. . so what'd it sound like when you got out there?

A. What did what sound like?

Q. What'd Wolfie have to say before he got shot? What was goin' . . . what was the conversation in the car out there, goin' out there?

A. Nothin'. . it was just me and Shane and I wasn't really payin' attention . . . in the back. I was in the passenger seat. . we were smokin' weed.

[Transcript of interrogation continues for 54 pages.]