United States v. Wilbert E. Hackley

TAMM, Circuit Judge,

dissenting:

Although I agree with the majority that the district court properly admitted the identification testimony, I must respectfully dissent. In my view the Supreme Court’s decisions in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), compel us to hold that Hackley’s statement to Agent Colvert was inadmissible. I therefore believe that the case must be remanded for a new trial. Only through lip-service to precedent and legerdemain with the facts does the majority avoid this result.

After detailing the now-famous warnings, the Court stated in Miranda that “if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.’’ 384 U.S. at 445 , 86 S.Ct. at 1612 (emphasis added). The Court thereafter elaborated, as the majority in the case before us notes:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Id. at 473-74 , 86 S.Ct. at 1627 (emphasis added; footnote omitted). In Michigan v. Mosley, the Court explained further that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Id., 423 U.S. at 104 , 96 S.Ct. at 326 (quoting Miranda v. Arizona, 384 U.S. at 474, 479 , 86 S.Ct. at 1627, 1630 ).

In this case we must decide whether the police “scrupulously honored” Hackley’s right to cut off questioning. Agent Colvert testified that after Detective Fontanna summoned him back to the office, he engaged in the following colloquy with Hackley:

The best I can recall Detective Fontanna said something like, “He says Briscoe was with him.” I said at that point, “Do you want to tell me about it?” He says, “I don’t.” I said, “You got tired of having to handle this thing all yourself, the weight yourself?” He said, “Yes, I am not going to take it myself.” Then he gave a statement.

Hearing Transcript at 27 (emphasis added), quoted in Maj.Op. at 497. 1

The majority construes Hackley’s words “I don’t” as meaning that “he preferred not to tell about it but had decided not to bear the full weight himself.” Maj.Op. at 497 n.8. I disagree. “I don’t” just does not *505 mean “I do.” Hackley stated unambiguously that he no longer wished to make a statement, and no amount of semantic sleight of hand can make this fact disappear. 2

The majority engages in a lengthy discussion in an attempt to demonstrate that Hackley knowingly, intelligently, and voluntarily waived his right to remain silent, the general constitutional standard for waivers. Assuming arguendo that they have succeeded in their effort, they have not addressed the other of Mosley’s dual requirements; namely, that the police hon- or scrupulously the accused’s invocation of his right to cut off questioning. 3 The majority does conclude that the police “immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade [Hackley] to reconsider [his] position.” Id. at 502 . Again, this assertion simply ignores what happened. When Hackley declined to make a statement, Colvert persisted in his interrogation. Colvert was not asking Hackley, cautiously and without any overtones of coercion, to reconsider his decision, a course of action some courts would permit. See United States v. Smith, 608 F.2d 1011 (4th Cir. 1979); Wilson v. Henderson, 584 F.2d 1185 (2d Cir. 1978), cert. denied, 442 U.S. 945 , 99 S.Ct. 2892 , 61 L.Ed.2d 316 (1979). 4 Likewise, Colvert was not simply attempting to clarify an ambiguous response from Hackley. See Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 , 100 S.Ct. 485 , 62 L.Ed.2d 409 (1979). Rather, he was continuing his interrogation in the face of Hackley’s refusal to talk, and he succeeded in eliciting a statement through a time-proven interrogation technique: suggesting to the suspect that he is better off incriminating his accomplices — and himself — than facing the consequences alone. Colvert thus did not honor, scrupulously or otherwise, Hackley’s right to cut off questioning.

Despite the majority’s efforts, no tinkering with the facts can put this case on all fours with Mosley . In Mosley , the Court found three factors significant in allowing the statements to be admitted: (1) the police immediately ceased interrogation when Mosley asked that they stop and did not resume until two hours had passed; (2) they repeated the Miranda warnings, including the right to terminate interrogation, when they reopened questioning; and (3) they discussed a different crime entirely. 423 U.S. at 104-05 , 96 S.Ct. at 326-27 . Here, Colvert did not stop interrogating Hackley but continued full steam, without interruption; he did not rewarn Hackley that he could remain silent; and he did not raise a different subject matter but persisted in asking Hackley about precisely the same topic he had refused to discuss a bare moment earlier. 5

*506 Miranda and its progeny spring from a frank realization that we do not fully understand the workings of the human mind — in particular, that we cannot be sure what external circumstances can overcome the will of a person in custody. Informing the accused of his rights, it is thought, works to dispel the inherently coercive environment of confinement. Miranda v. Arizona, 384 U.S. at 469 , 86 S.Ct. at 1625 . Accord, Michigan v. Mosley, 423 U.S. at 104 , 96 S.Ct. at 326 . Among these rights is the right to remain silent, and the Court has made clear that to make this right meaningful, interrogation must cease if the suspect so desires. To “permit the continuation of custodial interrogation after a momentary cessation,” the Court has found, “would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned.” Id. at 102, 96 S.Ct. at 326 . Similarly, continuing questioning despite the accused’s wish that it stop can create the impression that the police did not really mean what they said when they told him he could cut off interrogation at any time. See United States v. Hernandez, 574 F.2d 1362, 1369 (5th Cir. 1978). 6 Because I believe the police in this case did not follow the clear dictates of Miranda , as construed by Mosley , I would reverse the conviction and remand the case for a new trial at which Hackley’s statement to Colvert would be excluded.

. The district court excluded Hackley’s earlier remarks to Fontanna. Although the Supreme Court’s recent decision in Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), may have shed more light on whether Fontanna’s dialogue with Hackley amounted to “interrogation” under Miranda , the admissibility of Hackley’s responses to Fontanna is not before this court. Even if it were, Hackley still retained the right to cut off questioning when Colvert entered the room: if he can change his mind about remaining silent, he surely can change it again and decide not to confess. Moreover, Innis , in holding that “Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent,” id. at 300 , 100 S.Ct. at 1689 (emphasis added), leaves no doubt that Colvert’s questioning was interrogation subject to Miranda’s strictures.

. Had Hackley’s words appeared in a verbatim transcript and had contextual evidence supported the majority’s construction, I might have been willing to accept that construction as an interpretive gloss giving life to the sterile printed word. We are not discussing a transcript, however, but Colvert’s own recollections of what happened. Thus, we have before us his impression of how Hackley’s words sounded in context, and that impression, as reported to the court, indicates Hackley refused to talk. Despite what he understood as a refusal, Colvert continued his questioning.

. Michigan v. Mosley, 423 U.S. at 107-11 , 96 S.Ct. at 328-30 (White, J., concurring in the result) (construing the majority’s opinion as requiring both voluntariness and a scrupulous honoring of the right to terminate questioning); Note, Interrogation of the Silent Suspect: Another Look at the Miranda Doctrine, 62 Iowa L.Rev. 291, 297 (1976) (same).

. Not all courts have agreed with this principle. See, e. g., United States v. Massey, 550 F.2d 300, 308 (5th Cir. 1977); United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970) (if the suspect decides not to talk, “the interrogator must not be permitted to seek a retraction”), cert. denied, 402 U.S. 947 , 91 S.Ct. 1640 , 29 L.Ed.2d 116 (1971). Indeed, the majority position in Wilson drew a strong dissent. See 584 F.2d at 1192-95 (Oakes, J., dissenting). I intimate no view on how I would vote in a case involving an unadorned request to reconsider a refusal to talk.

. I do not mean to suggest that Mosley requires all three of these factors be present in each case, although some believe that at a minimum a person in custody must be rewarned when the police resume questioning, see, e. g., Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is “Interrogation"? When Does It Mat *506 ter?, 67 Geo.L.J. 1, 72 (1978). I raise these factors to emphasize that Hackley’s case is not identical to Mosley and to show how the police failed to honor scrupulously his right to terminate interrogation.

. A single question, one might be willing to conclude, would not seriously disturb the right to cut off questioning. Nevertheless, because Miranda is a prophylactic rule that tries to prevent police incursions into an individual’s privilege against self-incrimination, its contours must be clear so that police know what they may and may not do. Only last term the Supreme Court reiterated that the rigidity of the Miranda rule is justified because the need to give police and courts specific guidelines outweighs the burdens on law enforcement created by abandoning traditional fifth amendment voluntariness analysis. Fare v. Michael C., 442 U.S. 707, 718 , 99 S.Ct. 2560, 2568 , 61 L.Ed.2d 197 (1979). Any attempt to permit some questions but not others would create only confusion.