Right to remain silent must be scrupulously honored by the police. That usually means questions must stop after suspect says he does not want to talk. So what went wrong here? Did anything go wrong at all?
People v. Flores, 2014 IL App (1st) 121786 (11/14/2014). Murder and attempted murder conviction are reversed and case remanded for new trial. Police did not honor Defendant’s invocation of his right to remain silent. There was no coercion or intimidation, but “no” means “no.”
Defendant was arrested for a shooting that occurred in Chicago. A van was being driven around. It was hunting for rival gang members. The passenger engaged in at least two shootings. One victim died.
No strong eyewitness identifications were made.
Defendant was 17 years old. He was arrested in May and held for 50 hours in an interrogation room. Eventually, he gave statements that he was the shooter.
In July, Defendant was arrested again. He also gave statements that he was the shooter in the July statement.
The May statement was flatly declared inadmissible by the trial judge. The trial court found that in the May interrogations –
- Defendant asked for counsel
- Detectives reinitiated questioning of Defendant 14 to 15 hours later
- Detectives used an excessive amount of profanity with Defendant
- Detectives misinformed Defendant about key evidence they said they had on him
The State declined to proceed with charges in May, thus Defendant was released.
Defendant was rearrested in July after the driver of the van implicated Defendant as the shooter.
In the July interview, Defendant was read read his rights. This is partly what transpired in the police interrogation-
DETECTIVE: Okay, Uh–[co defendant] has been in here. [He] has been saying some things about you—
DETECTIVE: — and we wanted to talk to you about them.
You want to talk to us about that?
DEFENDANT: Not really. No.
DETECTIVE: Well, I mean, he's, you know, he's saying things that aren't good about you. That's why we <inaudible> And basically he's saying that you were the one who produced the gun for that shooting.
See ¶ 31.
Later, Defendant tells them that he “aint gonna say nothing about nothing.” ¶ 33.
It goes on. Eventually, defendant confesses to being the shooter. He makes a tape statement to that effect.
At the hearing on the motions to suppress, the trial judge viewed the tapes and no live witnesses testified.
The trial judge ruled that the July statements were admissible because any invocation in May was no longer in effect by July.
“The trial court found that defendant did not invoke his right to remain silent because even though defendant responded, ‘Not really. No.’ when asked if he wanted to speak with the detectives, defendant “still [kept] engaging the detectives.” The court concluded that defendant's Miranda rights were not violated. The court further found that the statement was voluntary and defendant's will was not overborne.” ¶ 4.
“Where a defendant challenges the admissibility of his confession through a motion to suppress, the State has the burden of proving the confession was voluntary by a preponderance of the evidence.” People v. Braggs, 209 Ill. 2d 492, 505 (2003) (citing 725 ILCS 5/114-11(d).
“The concept of voluntariness includes proof that the defendant made a knowing and intelligent waiver of his privilege against self-incrimination and his right to counsel.” Id.
Right to Remain Silent
An interrogation must cease once the individual indicates in any manner and at any time prior to or during a custodial interrogation that he wishes to remain silent. See People v. Hernandez, 362 Ill. App. 3d 779, 785 (2005). ” ‘[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.' ” Id. (quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966)).
A defendant may invoke his or her right to silence either verbally or through nonverbal conduct that clearly indicates a desire to end questioning. Id. (citing People v. Nielsen, 187 Ill. 2d 271, 287 (1999) (finding that the defendant placing his hands over his ears, turning his head, and saying, ” ‘nah nah nah,' ” was sufficient to invoke right to remain silent)). See ¶ 37.
“If verbal, the individual's demand to end the interrogation must be specific.” Id.
Reinitiating The Interview
“The United States Supreme Court in Smith v. Illinois, 469 U.S. 91 (1984), considered whether a defendant's statements subsequent to his request for an attorney rendered the invocation ambiguous and equivocal.” ¶ 38.
“[A]n accused's post request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver.” Id. at 100.
“With respect to the waiver inquiry, we accordingly have emphasized that a valid waiver ‘cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.' ” Id. at 98 (quoting Edwards v. Arizona, 451 U.S. 477, 484 (1981)).
Additionally, “Statements made after the invocation of the right to silence are admissible only if the interrogators scrupulously honored the defendant's right to cut off questioning.” People v. Hernandez, 362 Ill. App. 3d 779, 786 (2005).
Scrupulously Honoring Right To Remain Silent
In determining if an accused’s rights have been honored courts will look at and see if –
(1) The interrogator immediately halted the initial interrogation after the defendant invoked
(2) There was a significant amount of time elapsed between the interrogations;
(3) The defendant was ‘re-Mirandized' before the second interrogation; and
(4) The second interrogation addressed a crime different from that of the first interrogation (though the fact that the same crime was discussed during both interrogations does not preclude a finding that the defendant's right to silence was scrupulously honored).”
Hernandez, 362 Ill. App. 3d at 786 (citing Nielsen, 187 Ill. 2d at 287).
Here, defendant's invocation of his right to remain silent was not scrupulously honored. ¶ 59.
The video in this case revealed that after Defendant was read his rights the Defendant was asked if he wanted to make a statement. The answer was pretty clearly in the negative.
The detective, nonetheless, went on with the questioning.
Defendant continued to express his desire to remain silent. He shook his head in the negative when asked if he wanted to say something about the gun. He told them he was not going to say nothing about nothing.
Detectives went on.
The reviewing court said that the invocation of a right to remain silent should not be based on how an interrogator phrases his or her questions to the defendant.
Defendant’s “No” could not have been more clear. He did not have to elaborate any more on what he meant by “no” nor did he have to make any other physical manifestation of his intent.
Ok, But Was His Invocation Limited in Scope?
Any attempt to try to limit Defendant’s denials to specific topics rather than a general denial to talk to detectives is futile. Also, the video did not support the notion that Defendant was “engaging in the conversation with the detectives.” ¶ 56.
The videotaped interrogation disclosed in excess of 30 pauses between questions asked by the detective and any response from defendant.
Defendant’s incriminating statements came two hours later after all his denials and hesitations were ignored.
The reviewing court cited all these cases which involved a defendant declining to talk to interrogators –
- Smith v. Illinois, 469 U.S. 91 (1984)
- People v. Hernandez, 362 Ill. App. 3d 779, 785 (2005)
- Edwards v. Arizona, 451 U.S. 477, 484 (1981)
- People v. Brown, 171 Ill. App. 3d 993 (1988)
- People v. R.C., 108 Ill. 2d 349 (1985)
And provided examples (unlike this case) of cases with ambiguous innovations –
- People v. Milner, 123 Ill. App. 3d 656, 658 (1984)
- People v. Aldridge, 68 Ill. App. 3d 181, 186-87 (1979)
- People v. Troutman, 51 Ill. App. 3d 342, 344 (1977)
- People v. Pierce, 223 Ill. App. 3d 423, 430-31 (1991)
- People v. Kronenberger, 2014 IL App (1st) 110231
- Michigan v. Mosley, 423 U.S. 96, 103-04 (1975)
While it is true that the passage of time and fresh Miranda warnings were given before the ASA interviewed Defendant, this was not found to be sufficient to show that defendant's invocation of his right to remain silent was scrupulously honored.
All of the statements are out.
The appellate court found that Defendant invoked his right to remain silent and the detectives should have ceased all questioning after asking defendant if he wanted to talk to them and defendant responded, “Not really. No.”
This response was a clear and unequivocal response that defendant did not wish to waive his right to remain silent. The invocation was not just limited to his desire to comment on the driver’s statements.