Reply Brief — Kyle Trevor Flack, Petitioner v. Kansas

CAPITAL CASE

No. 24-5637

In the Supreme Court of the United States

________________________________________

KYLE T. FLACK,

Petitioner

v.

STATE OF KANSAS,

Respondent

________________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE KANSAS SUPREME COURT

________________________________________

PETITIONER'S REPLY BRIEF

________________________________________

Clayton J. Perkins,

Counsel of Record

Caroline M. Zuschek

Kathryn D. Stevenson

Hope Faflick Reynolds

KANSAS CAPITAL

APPELLATE DEFENDER

OFFICE

300 SW 8th St., Ste. 303

Topeka, KS 66603

(785) 368-6587

cperkins@sbids.org

Counsel for Petitioner Mr.

Kyle Flack

ii

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................... ii

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ........................................................ 1

ARGUMENT................................................................ 3

I.

Mr. Flack unambiguously expressed his

desire to cut off questioning. ................................ 3

II. Miranda requires police to terminate

custodial interrogations upon an

individual's clear request...................................... 4

A. Mr. Flack properly preserved this issue

for the Court's review ..................................... 4

B. The police's duty to terminate custodial

interrogation upon an individual's clear

request exists regardless of whether the

right to cut off questioning is distinct

from, or a part of, the right to silence. ........... 6

C. Lower courts disagree over whether

police may refuse to terminate

questioning upon request. .............................. 8

III. The court below nullified Mr. Flack's plain

Miranda invocation by speculating as to his

subjective motives for invoking .......................... 11

CONCLUSION .......................................................... 13

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008)

................................................................................ 10

Barr v. City of Columbia, 378 U.S. 146 (1964) ........... 6

Connecticut v. Barrett, 479 U.S. 523 (1987) ......... 3, 11

Davis v. United States, 512 U.S. 452 (1994)........... 2, 7

Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989) ......... 8

Deviney v. State, 112 So.3d 57 (Fla. 2013).................. 9

Dorsey v. United States, 60 A.3d 1171 (D.C. Cir.

2013) ......................................................................... 9

Emspak v. United States, 349 U.S. 190 (1955)........... 7

Garcia v. Long, 808 F.3d 771 (9th Cir. 2015) ............. 9

Hathorn v. Lovorn, 457 U.S. 255 (1982) ..................... 6

Jones v. Cromwell, 75 F.4th 722 (7th Cir. 2023) .......... 3

Michigan v. Mosley, 423 U.S. 96 (1975) ................. 1, 7

Miranda v. Arizona, 384 U.S. 436 (1966)

........................................................ 1, 2, 4, 6, 7, 8, 12

Moran v. Burbine, 475 U.S. 412 (1986) ...................... 1

People v. Villasenor, 242 Cal. App. 4th 42 (2015) ...... 9

People v. Williams, 233 P.3d 1000 (Cal. 2010) ......... 12

Smith v. Illinois, 469 U.S. 91 (1984) ........................ 10

State v. Cobbs, 324 A.2d 234 (Conn. 1973) ................. 7

State v. Cummings, 850 N.W.2d 915 (Wis. 2014) ...... 9

State v. Holley, 315 Kan. 512 (2022)........................... 6

State v. Scott, 286 Kan. 54 (2008) ............................... 5

State v. Waloke, 835 N.W.2d 105 (S.D. 2013) ........... 10

United States v. Abdallah, 911 F.3d 201 (4th Cir.

2018) ....................................................................... 12

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

CONSTITUTION AND STATUTES

U.S. Const. amend V ......................................... 1, 8, 12

OTHER AUTHORITIES

Kansas Supreme Court, 115,964–State v. Kyle Trevor

Flack–Part One, YouTube (34:24-34:32),

https://www.youtube.com/watch?v=yT3h0XV2Csk

.................................................................................. 4

1

INTRODUCTION

Because an individual's inability to protect the privilege against selfincrimination before trial practically nullifies his Fifth Amendment right to not be

compelled to testify against himself at trial, Miranda v. Arizona, 384 U.S. 436, 47479 (1966), adopted prophylactic safeguards to fortify the Fifth Amendment. These

safeguards grant individuals undergoing custodial interrogation the rights to remain

silent, to the assistance of counsel, and to cut off questioning. Id.; Michigan v. Mosley,

423 U.S. 96, 103-04 (1975). The right to cut off questioning, in particular, confers on

the individual the indispensable "power" to control the time, subject, and manner of

custodial interrogations. Moran v. Burbine, 475 U.S. 412, 426 (1986); Mosley, 384 U.S.

at 474. Miranda's safeguards remain the principal assurance that an individual's

custodial statements resulted from his free choice. Elstad v. Oregon, 470 U.S. 298,

306-07 (1985).

Kansas, by repeatedly conflating the Fifth Amendment with Miranda's

safeguards, fails to respond to Mr. Flack's first question presented, which asks this

Court to uphold Miranda by requiring police to cut off questioning following an

individual's unambiguous request to terminate his interrogation. Kansas merely

asserts that the rights to silence and to cut off questioning are interchangeable, and

in so doing, fails to analyze whether Miranda and its progeny permit police to

continue the interrogation of an individual who has unambiguously requested that

the interrogation end. Kansas further attempts to distract from this issue of national

2

importance by raising a novel preservation claim that remains unsupported by the

record, and by ignoring disagreement amongst lower courts over when an individual's

unambiguous attempt to terminate questioning invokes Miranda's safeguards.

Likewise, Kansas fails to comprehend the second question presented, which

asks this Court to clarify that when an individual subjected to custodial interrogation

plainly invokes Miranda, inquiry into why the individual invoked is both irrelevant

and impermissible. Like the court below, Kansas speculates about what Mr. Flack's

statements "could" have been trying to achieve to imbue his otherwise plain words

with ambiguity. Kansas disregards the ordinary meaning of Mr. Flack's words, and

fails to recognize that first ascribing an invocation its plain meaning is integral to the

objective inquiry mandated by this Court. Davis v. United States, 512 U.S. 452, 459

(1994). Kansas further ignores the untenable split amongst lower courts over whether

context can nullify a facially unambiguous invocation, as well as the danger in

permitting police to disregard unambiguous invocations based on conjecture.

The prosecution may not rely on statements taken in violation of Miranda to

prove its case at trial. Miranda, 384 U.S. at 479. If Mr. Flack is correct that the police

violated Miranda by continuing to badger him after he clearly requested that his

interrogation end, and by speculating about his motives for invoking Miranda to

nullify his otherwise plain demand to cut off questioning, then the reliability of the

jury's decision to sentence Mr. Flack to death cannot withstand scrutiny—especially

because the prosecution relied heavily on Mr. Flack's statements in both the guilt and

3

punishment phases of his trial. Kansas thus fails to supply any reason why this Court

should not grant Mr. Flack's petition to address these important questions.

ARGUMENT

I.

Mr. Flack unambiguously

questioning.

expressed

his

desire

to

cut

off

Kansas attempts to counter Mr. Flack's claim that he unambiguously invoked

his right to cut off questioning by suggesting that when he said "take me to jail," he

could have meant, inter alia, "I'm telling the truth." Opp. 11. But "interpretation [of

an invocation] is only required where the defendant's words, understood as ordinary

people would understand them, are ambiguous." Connecticut v. Barrett, 479 U.S. 523,

529 (1987). And, even then, "courts must not use context to turn an unambiguous

statement into an ambiguous one in 'disregard of the [statement's] ordinary

meaning.'" Jones v. Cromwell, 75 F.4th 722, 726 (7th Cir. 2023) (quoting Barrett, 479

U.S. at 529). Here, the phrase "take me to jail," lacks ambiguity, and thus requires

no further analysis and permits no speculation. Instead, when Mr. Flack demanded

that police "take [him] to jail" nearly ten times verbatim in response to the officers'

questions, and then buried his head in his arms and placed them on the table, the

"unambiguous meaning of his words and their necessary implication [was clear]:

terminate the encounter by taking him to jail." App. 74a.

Because Mr. Flack was under arrest, he could only terminate his

interrogation by returning to jail. "[T]ake me to jail," thus sufficiently articulated Mr.

4

Flack's desire to leave the interrogation and thereby cut off questioning. Kansas's

argument to the contrary lacks both legal and logical support. See also, Issue III,

infra.

II.

Miranda requires police to terminate custodial interrogations upon

an individual's clear request.

A. Mr. Flack properly preserved this issue for the Court's review.

Whether police violated Miranda by continuing to question Mr. Flack after he

repeatedly demanded that his interrogation end is properly before this Court. The

record belies Kansas's assertion to the contrary. Opp. 14. Mr. Flack's initial brief

before the Kansas Supreme Court explained that "[t]he central question in [his] case

[wa]s whether [he] clearly asserted his right to cut off questioning." Br. 60; Pet. 24.

Moreover, by the questions the justices posed at oral argument, the court below

signaled that it understood that Mr. Flack's argument focused on his right to cut off

questioning and thus end his interrogation:

Justice Stegall: "So, you don't think there is any other plausible

interpretation of [take me to jail] . . . the communicative content of those

words can't be anything other than, 'end the interrogation'?"

Counsel for Mr. Flack: "Yes."

Kansas Supreme Court, 115,964–State v. Kyle Trevor Flack–Part One, YouTube

(34:24-34:32), https://www.youtube.com/watch?v=yT3h0XV2Csk (last visited Dec. 2,

2024).

5

Accordingly, when the court below held that Mr. Flack's attempts to cut off

questioning failed to invoke his right to silence, it implicitly concluded that police may

continue to interrogate an individual after he has clearly demanded his interrogation

end when the demand is not couched in a request to remain silent. In fact, it has

explicitly held so before. State v. Scott, 286 Kan. 54, 70–71 (2008) (holding accused's

request to delay interrogation did not require its termination because though an

individual "can decide he or she does not want to answer questions at [any] time" he

"must still unequivocally invoke the right [to remain silent]."), rev'd on other grounds

State v. Dunn, 304 Kan. 773 (2016).

This case's procedural history, including the State's own admissions, further

establish that Mr. Flack properly preserved this issue for this Court's review. Mr.

Flack filed a motion for rehearing that included the argument presented here. First

Mot. For Reh'g, 42-54. The State moved to strike the motion, identifying three claims

other than this one as "being raised for the first time[,]" while recognizing "the rest"

of Mr. Flack's motion "addresse[d] issues previously raised[.]" Mot. To Strike, 4. The

court below struck Mr. Flack's first motion and allowed him to refile it without the

new claims. Ord. ¶1, April 25, 2024. Mr. Flack's second motion excised the three new

claims, but retained argument on the police's violation of his right to cut off

questioning, which the State acknowledged he had "previously raised." Second Mot.

For Reh'g, 14-21; Mot. To Strike, 4. The court accepted Mr. Flack's second motion,

implicitly finding that it complied with its April 25 Order. The Kansas Supreme Court

6

thus heard and decided the federal question at issue here, which Mr. Flack properly

presented.

But even if this Court construes the denial of Mr. Flack's second motion for

rehearing as the silent application of a state procedural bar, this Court cannot

conclude the state court consistently relies upon the rule. See, e.g., State v. Holley,

315 Kan. 512, 513 (2022) (granting Kansas's motion for rehearing; directing the

parties to file supplemental briefing on several of the Court's own, new questions

related to the use of self-defense). It therefore would not constitute an adequate

ground barring this Court's review. Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982)

("unless the procedural rule is 'strictly or regularly followed'" it does not bar this

Court's review of a federal question) (quoting Barr v. City of Columbia, 378 U.S. 146,

149 (1964)). Accordingly, review is proper.

B. The police's duty to terminate custodial interrogation upon an

individual's clear request exists regardless of whether the right

to cut off questioning is distinct from, or a part of, the right to

silence.

Contrary to Miranda's historical record, Kansas next argues that the rights

to silence and to terminate questioning constitute "interchangeable terms," which

"are, in fact, the same thing." Opp. 13-14, 18. The Court intentionally added the

phrase "the right to cut off questioning" to Miranda, only excluding the right from

Miranda's express warnings because of fear that including it would undermine the

FBI procedure on which warnings were modeled, not because of disagreement over

7

the right's existence. Pet. 13-15. If the right to remain silent and the right to cut off

questioning truly meant the same thing, the Court would not have contemplated

warning individuals about their right to terminate interrogations, nor would the

Court have included the phrase "the right to cut off questioning" in Miranda; it would

have been mere surplusage.

Moreover, even if both rights are merely facets of the right to silence, it

undermines Miranda and Mosley—which aimed to give individuals the power to

combat coercive interrogations—to require individuals to unambiguously invoke

their right to silence when, in fact, they merely want to terminate the interrogation.

While individuals must invoke Miranda unambiguously, "no ritualistic formula or

talismanic phrase” is required, Emspak v. United States, 349 U.S. 190, 194 (1955),

nor must the individual "speak with the discrimination of an Oxford don." Davis, 512

U.S. at 459.

In fact, this Court has explicitly disapproved of cases in which "police failed

to honor a decision of a person in custody to cut off questioning . . . by refusing to

discontinue the interrogation upon request." Mosley, 423 U.S. at 105; see also, State

v. Cobbs, 324 A.2d 234, 244 (Conn. 1973) ("[I]f an accused wishes to stop answering

questions the police have a duty to close the interrogation."). Thus, even if Kansas

correctly identifies the right to silence and the right to terminate questioning as two

sides of the same coin, Miranda and Mosley still indicate that police must stop

questioning an individual upon his unambiguous invocation of the right to remain

8

silent, which necessitates the termination of interrogation, or upon his unambiguous

invocation of the right to terminate the interrogation, which necessarily requires

police to honor his right to silence.

C. Lower courts disagree over whether police may refuse to

terminate questioning upon request.

Kansas's assertion that no disagreement exists over the breadth of Miranda's

safeguards because no court "has affirmatively held there are two separate Fifth

Amendment rights at play in the context of custodial interrogation" misses the point.

Opp. 17-18. First, only one Fifth Amendment right against self-incrimination exists.

Second, regardless of whether the right to cut off questioning is distinct from the right

to silence, or an integral part of it, the question remains whether unambiguous

requests to terminate questioning require police to discontinue interrogations. On

this question, two splits exist.

First, courts disagree on the analysis Miranda requires. Some courts examine

whether a purported invocation clearly communicates an individual's desire to

remain silent or to cut off questioning, while other courts examine invocations only

to determine if they communicated a desire to remain silent. Compare Delap v.

Dugger, 890 F.2d 285, 293 (11th Cir. 1989) (analyzing whether individual's questions

regarding how much longer he would be detained invoked his "right to terminate

questioning"), and People v. Villasenor, 242 Cal. App. 4th 42, 64-66, 69 (2015)

(examining individual's statements to determine whether he "unambiguously

9

demanded that the interrogation end" and holding that "his Miranda right to cut off

questioning was violated"), with Garcia v. Long, 808 F.3d 771, 777 (9th Cir. 2015)

("[T]he suspect's right to cut off police questioning is triggered only when the suspect

unambiguously and unequivocally invokes it, by invoking either the right to remain

silent or the right to counsel.")

Second, courts disagree over whether unambiguous requests to cut off

questioning require custodial interrogations to end. Some courts hold that phrases

communicating a desire to terminate the interrogation—such as "take me to jail," or

"take me home"—require the interrogation to end either because they unambiguously

invoked the individual's right to cut off questioning, or because a demand that

interrogation cease necessarily invokes a right to silence—while other courts

conclude that only specific references to silence require police to cease questioning.

Pet. 19-21, 30 (comparing Dorsey v. United States, 60 A.3d 1171, 1189 n.27, 1200

(D.C. Cir. 2013) ("[A]sking to be taken back to the cellblock 'now,' after having made

several similar requests in the proceeding hour" "invoke[d accused's] right to end the

interrogation"), and Deviney v. State, 112 So.3d 57, 77-78 (Fla. 2013) (holding

individual's repeated iterations of "I'm done. I'm ready to go home. Can I leave?,"

indicated "his desire to end questioning" and required cessation of interrogation),

with State v. Cummings, 850 N.W.2d 915, 926 (Wis. 2014) (holding police not required

to terminate interrogation when accused said, "well, then, take me to my cell. Why

waste your time?" because it didn't unambiguously invoke right to silence), and State

10

v. Waloke, 835 N.W.2d 105, 112 (S.D. 2013) (holding accused's "statements that she

wanted to go home or that officers should just take her to jail" did not require

discontinuation of interrogation because accused didn't say that "she wanted to

remain silent or did not want to speak with police anymore")).

The State attempts to dismiss these disparate outcomes with the platitude

that "facts matter." Opp. 17. And certainly, some of those cases turned on "facts" the

courts speculated might have motivated the words the accused used—a problem

discussed more thoroughly in Issue III. But here is a platitude in return: words mean

what they say.

The same unambiguous words must have the same legal meaning regardless

of where they are spoken because a statement is either an invocation or it is not.

Smith v. Illinois, 469 U.S. 91, 97 (1984). To hold otherwise would make the inquiry

into whether the accused invoked a subjective one, which "defies both common sense

and established Supreme Court law." Anderson v. Terhune, 516 F.3d 781, 787-88 (9th

Cir. 2008) (en banc). It is not that the facts surrounding an individual's invocation

lack importance, but that the plain meaning of ordinary words controls. Id. at 787.

As such, that nearly identical phrases like "take me to jail" or "take me home" do not

uniformly result in the termination of questioning demonstrates the problematic split

that exists over whether police must honor clear requests to terminate interrogations

that begs this Court's intervention.

11

III.

The court below nullified Mr. Flack's plain Miranda invocation by

speculating as to his subjective motives for invoking.

Kansas's assertion that the court below did not speculate into Mr. Flack's

subjective intent when determining if "take me to jail" constituted a valid invocation

is unpersuasive. Opp. 18-19. Because interpreting an invocation is necessary only

when the invocation's words, "understood as ordinary people would understand them,

are ambiguous," Barrett, 479 U.S. at 529, ascribing an invocation its plain meaning

constitutes a key part of the objective inquiry required by Davis. See Pet. 30-32. But

Kansas fails to cite to any analysis in the decision below of the plain meaning of Mr.

Flack's insistent requests to "take [him] to jail," nor does it offer any analysis of its

own. Instead, it replicates the lower court's errors by ignoring the ordinary meaning

of the phrase "take me to jail" and by suggesting this phrase "could be viewed" as a

negotiating tactic, or an attempt to bolster Mr. Flack's credibility. Opp. 10-12. But

neither Kansas, nor the court below, know why Mr. Flack invoked; thus, any guess

as to his motive for invoking is both subjective and speculative.

Kansas's next argument—that the lower court relied on what a reasonable

officer might have understood Mr. Flack's intent to be but not Mr. Flack's subjective

intent—creates a distinction without a difference. Opp. 18-19. Guessing what a

reasonable officer might have speculated merely creates a two-tiered inquiry into an

individual's subjective motivations. And such speculation permits police to ignore

plain invocations if they can conjure some ulterior motive for an individual to have

12

invoked. This guts Miranda and its practical reinforcement of the Fifth Amendment

privilege against self-incrimination.

Moreover, deep schisms in authority exist on this issue, notwithstanding

Kansas's bald refusal to acknowledge them. Opp. 19; see Pet. 28-32 (comparing

United States v. Abdallah, 911 F.3d 201, 212 (4th Cir. 2018) (rejecting government's

argument that context indicating accused was angry should nullify his otherwise

clear invocation, noting "no requirement [exists] that Miranda invocations be

measured, polite, or free of anger, in the assessment of the officers to whom they are

directed") with People v. Williams, 233 P.3d 1000, 1023 (Cal. 2010) (finding

statements, including "I want to see my attorney cause you're all bullshitting now,"

ambiguous in context because the accused could have made statements as an

"expression[] of passing frustration or animosity towards the officers," rather than for

the purpose of invoking his rights). These divisions necessarily implicate the scope of

protections afforded the privilege against self-incrimination. While the analysis of an

invocation necessarily turns on what the accused said, this Court should reject

Kansas's attempt to use "factual differences" to veil the ever-growing split appearing

in lower courts' analyses as to whether speculation into an individual's subjective

intent is permissible in assessing the validity of a Miranda invocation. This Court

should intervene to clarify that when an individual plainly invokes Miranda, there is

no room for guesswork on the reasons why.

13

CONCLUSION

The Court should grant Mr. Flack's petition for a writ of certiorari.

Respectfully submitted.

_____________________

Clayton Perkins,

Counsel of Record

Caroline M. Zuschek

Kathryn D. Stevenson

Hope Faflick Reynolds

KANSAS CAPITAL

APPELLATE DEFENDER

OFFICE

300 SW 8th St., Ste. 303

Topeka, KS 66603

(785) 368-6587

cperkins@sbids.org

Counsel for Mr. Kyle Flack

December 3, 2024