Procedural History:
A motion to surpress was granted by the trial court in regards to post-miranda incriminating statements made by the defendant. The Commonwealth's leave to appeal from the allowance was granted by the SJC.
Issues:
1)Whether the Defendant invoked his right to remain silent under the Fifth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights.
2)Whether the police scrupulously honored the Defendant's right to silence.
Facts:
Defendant was arrested on October 10th 2008 by MBTA transit police for an indecent assault and battery that had occurred at a subway station several weeks earlier. The two police officers who affected the arrest placed the Defendant in an interrogation room at MBTA headquarters where the Defendant was informed that the conversation was to be video recorded.
The Defendant was presented with a waiver form and signed it without reading it. One of the interrogating officers verbally informed the defendant of his rights. The defendant began to ask questions about his rights, specifically if he was required to speak with police. The Defendant then stated that he wanted to go home. One of the interrogating officers asked the Defendant " So you don't want to speak with us?" to which the Defendant responded by shaking his head back and forth in a negative fashion. One officer testified at the motion hearing that he understood that to mean that the Defendant was invoking his right to silence. The other officer testified that she was not clear on whether the Defendant meant to invoke his right to silence or not. The questioning continued and the Defendant made incriminating statements which the Commonwealth sought to use against him at trial.
Holding:
The defendant unambiguously asserted his right to silence, and the police did not scrupulously honor that right to silence. Although the Defendant did not meet the Federal Thompkins standard for invocation of the right to silence, he sufficiently invoked that right under Article 12 of the Massachusetts Declaration of Rights.
Rule of Law:
The Court declined to adopt the Thompkins approach which requires that the suspect must invoke his right to silence with the "utmost clarity", and that he must actually speak. A suspect's failure to assert his right to silence with the utmost clarity does not make the invocation ambiguous, and a Defendant may assert his right to silence with nonverbal expressive conduct.
Reasoning:
In dealing with the invocation standard the Court relied on Commonwealth v Marrero, 436 Mass. 488, 496 (2002), which recognized that nodding and shaking one's head in response to direct questions constitutes "deliberate nonverbal expression". Here, the defendant shook his head, which was sufficiently communicative to invoke his right to silence under Article 12.
The court found that the police did not scrupulously honor the Defendant's right to silence because they did not immediately cease questioning after the unambiguous assertion of the right.
Policy:
If a suspect asserts his right to silence, and perceives the police are ignoring the invocation of that right, he may see additional assertions of that right as futile and confession as the only way to end the interrogation. Many suspects may not reassert their right to remain silent more clearly a second time, if their assertion was not honored the first time.
Judgment:
Motion to suppress affirmed. (HT)
