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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Munson v. State (11/18/2005) sp-5959

Munson v. State (11/18/2005) sp-5959

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


PAUL DAVID MUNSON, ) Supreme Court No. S-10444
)
Petitioner, ) Court of Appeals No.
) A-7694/A- 7723
v. )
) Superior Court No.
STATE OF ALASKA, ) 3AN-S99- 7945 CR
)
Respondent. ) O P I N I O N
_______________________________ ) [No. 5959 - November 18, 2005]
          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from   the  Superior  Court,  Third  Judicial
          District,  Anchorage, Michael  L.  Wolverton,
          Judge.

          Appearances:   Cynthia L. Strout,  Anchorage,
          for   Appellant.   W.  H.  Hawley,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.
          MATTHEWS, Justice, dissenting.

I.   INTRODUCTION
          I.   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 Miranda1 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:
          [Munson]:            Whats  gonna happen?  Is
                         Sam gonna know Im saying this?
          [Investigator]:     Maybe Sams 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,  Im  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 whatll happen to me?
          [Investigator]:     Listen to this here . . .
                         [2 ]
                         
Hoffbeck  then played a recording, which had been surreptitiously
obtained  pursuant to a Glass warrant,3 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.
     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,  Im  done talkin then, and that the  investigator
violated  this right by continuing the interrogation.  The  court
suppressed  Munsons 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 states obligation to  terminate  the
interrogation or to clarify Munsons intent.  The court of appeals
agreed.4    The  appeals  court  first  found  that  Munson   had
ambiguously  invoked his right to remain silent.5   Although  the
trial  court  had  made  no such finding, the  court  of  appeals
concluded  that such a determination was implicit  in  the  trial
courts  description  of what the police should  have  done  after
Munson  said, Well, Im done talkin then.6  The court  then  noted
that  while  Alaska law requires the police to clarify  ambiguous
requests  for  counsel,7  the  U.S. Supreme  Courts  more  recent
pronouncement in Davis v. United States8 imposes no such duty  on
police  interrogators. 9  Citing a number of  jurisdictions  that
have construed Davis to also require an unambiguous invocation of
the  right  to remain silent,10 and reasoning that the  right  to
counsel is more rigidly observed than the right to silence,11 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 Munsons confession.12   We  granted
review.
III. STANDARD OF REVIEW
          Whether   Munson  invoked  the  right   against   self-
incrimination  protected by both the United States13  and  Alaska
Constitutions14 presents a mixed question of law and fact that we
review  using  our  independent  judgment.15   We  adopt  factual
findings made by the trial court that are not clearly erroneous.16
In  the  absence  of express findings, we must  resolve  disputed
factual  issues  in favor of the party prevailing  in  the  trial
court.17  We review questions of law de novo,18 and adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.19
IV.  DISCUSSION
     A.   Munsons Request To Terminate the Custodial Interrogation Was
          Unambiguous.
          
          Was  Munsons  statement, Well,  Im  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,  Munsons  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  Munsons comment showed that he  was  afraid  of
retaliation  by Sam Camanga  not of incriminating  himself.   The
state  reasons  that Munsons request was therefore equivocal  and
thus  insufficient  to trigger any duty by the  police  to  honor
Munsons right to silence.  The court of appeals agreed.20
          We agree that the context of Munsons 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.21  Indeed, Detective Hoffbeck testified that  he
understood  Munsons 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.22
Thus,   we   conclude  that  a  reasonable   officer   in   these
circumstances would have understood Munsons 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 Munsons request) was based on an incorrect understanding
of a suspects 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
Munsons  request  was  equivocal.  To the  contrary,  the  courts
comments  at the suppression hearing strongly imply that  Munsons
request  was  unambiguous.23  Because we  conclude  that  Munsons
statement Well, Im done talkin then was an unambiguous request to
terminate  the  interview, the question is  not  whether  Munsons
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.
          Because  we  find that Munsons 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 Miranda24 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.
     B.   The  Right  to Silence Asserted by Munson Was Protected
          by Both the Federal and State Constitutions, Regardless
          of Munsons 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 Munsons 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 defendants rights to counsel and  to
remain  silent.25  While the core protection is a prohibition  on
compelling  a  defendant to testify against himself  at  trial,26
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.27  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.28   The  failure  to  provide  proper
warnings  or  to  obtain a waiver of those  rights  is  generally
sufficient to exclude any statements obtained.29  This rule-based
approach establishes a bright-line standard for admissibility  of
confessions;30 and the litmus test is not only whether the suspect
voluntarily  made a statement,31 but whether his  waiver  of  the
right to silence or to counsel was knowing and
intelligent.32  Although Mirandas requirements sweep  beyond  the
literal  protections of the Fifth Amendment,33 the  U.S.  Supreme
Court has described Miranda as a constitutional rule.34
          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.35  If  a  suspect  in  a
custodial interrogation
          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 . . .[36]
          
          Subsequent  decisions by the U.S.  Supreme  Court  have
clarified  the  states 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.37  Additionally, the police must scrupulously
honor[] a suspects invocation of the right to silence.38
          No   ritualistic  formula  or  talismanic   phrase   is
essential  in  order  to  invoke  the  privilege  against   self-
incrimination;39  all  that  is  required  to   invoke   Mirandas
          protections is a statement with sufficient clarity that a
reasonable  police officer in the circumstances would  understand
it  to  be  an invocation of the suspects rights.40   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.41
          Thus, a proper invocation of the privilege against self-
incrimination  under  Miranda  requires  only  three  things:   a
custodial  interrogation,42 a statement that would reasonably  be
understood  as  an invocation of the privilege,43 and  the  clear
possibility  from  the  context  of  the  interrogation  that   a
responsive answer might be dangerous because injurious disclosure
could  result.44   Once a suspect makes an  attempt  to  cut  off
questioning entirely,45 his request must be scrupulously honored.46
In  the face of an unequivocal invocation of those rights, police
interrogators  have very limited discretion to inquire  into  the
defendants subjective intent because they cannot, even to clarify
a  suspects intent, wear down his resistance and make him  change
his  mind.47   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.48   That  is, so long  as  the  suspects  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 suspects request.
          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  defendants
underlying  motivations for invoking his rights.49  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 suspects motivations prove a quagmire for police interrogators,
but  it  would  radically diminish Mirandas protections.   Almost
every  invocation  of the right to silence or  to  counsel  could
contain  some ambiguity on the suspects motives.  If  the  police
were permitted to aggressively inquire into a suspects subjective
intent  for  invoking the right, the suspect could  well  believe
that  his  rights are illusory.50  While the context  of  Munsons
statement suggests that he was more likely afraid of Sam  Camanga
than of incriminating himself, it was not for the interrogator to
speculate  about Munsons motives because the request  itself  was
entirely  unambiguous.   The  circumstances  surrounding  Munsons
interrogation  demonstrate  that  this  approach   provides   the
clearest  possible  guidance  for applying  the  requirements  of
Miranda and Mosley during a custodial interrogation.
            The  transcript of the interrogation shows  just  how
relentless  an interrogator can be when attempting to  clarify  a
suspects  invocation  of  his rights.   From  almost  the  moment
Munsons 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 dont say anything
                         .  . . the same thingll happen
                         to me?
                          . . . .
                         So Im gonna go to jail?
          [Interrogator]:      Of  course,  yes,  youre
                         going to go to jail.
          [Munson]:           And it doesnt 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]:            Whats  gonna happen?  Is
                         Sam gonna know Im saying this?
                         
          [Investigator]:     Maybe Sams 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, Im 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]:     Youve already said it . . .
                         
          [Munson]:           I know but . . .
                         
          [Investigator]:       So   whats  the  point?
                         Youve 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.51  The state argued below that the investigator
clarified  Munsons equivocal request by playing the recording  of
his  incriminating  discussion  with  a  co-defendant,  and  that
Munsons  later  confession demonstrated that  his  concerns  were
allayed  and  his  statements were voluntary.   But  the  overall
impact  of  the investigators comments, as well as  his  specific
response  to  Munsons  request  to terminate  the  interrogation,
demonstrate  the  inherently  coercive  nature  of  a   custodial
interrogation  and  reinforce the need  for  clear  standards  to
govern  an  interrogators  conduct in  the  face  of  a  suspects
invocation of his Miranda rights.
          While it is the centerpiece of the states position that
Munsons  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
Munsons  desire  to  stop the interrogation.52   Yet  instead  of
scrupulously   honoring  what  literally  was  a   present-tense,
unequivocal,  unconditional  attempt  to  cut  off  all   further
questioning,  the investigator brushed off Munsons  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
investigators opinion  he didnt need to be afraid in  any  event.
By  the  standard  established in  Rhode  Island  v.  Innis,  the
investigators   tactic   unquestionably   amounted   to   further
interrogation.53
          The court of appeals seems to have assumed that Munsons
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  defendants
clear attempt to cut off questioning entirely.54
          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 defendants refusal to speak;  we
simply  ask whether the states 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.[55]
          
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  Munsons 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 aint  saying
nothing)  may be held to [be ambiguous or equivocal].56   But  as
LaFave  indicates, the ambiguity in these situations  must  arise
from  contextual  circumstances suggesting  that  the  defendants
reluctance  is  much  more  limited  than  wanting  to  stop  the
interrogation  entirely.57   Hence,  if  Munsons  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.
          But  here, as already noted,  the circumstances  hardly
lend  themselves  to this characterization: Munsons  announcement
itself unequivocally and unconditionally declared his decision to
cut off questioning; and the surrounding circumstances, including
Munsons  apparent  motive  for stopping,  left  little  room  for
confusion.  As noted, the investigator never claimed that he  saw
anything  equivocal,  ambiguous,  or  conditional  about  Munsons
desire  to stop questioning entirely.  He understood that  Munson
wished to stop the questioning58 but erroneously thought that  he
was  free  to  press on despite Munsons wishes unless  and  until
Munson  formally invoked his Miranda rights by either asking  for
counsel  or  by refusing to continue talking.59  Nothing  in  the
circumstances   surrounding  Munsons  declaration,   in   Munsons
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.
          The   investigators  determination  to  ignore  Munsons
request seems particularly unreasonable when considered in  light
of  the  approach used in the interrogation leading up to Munsons
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 Munsons 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 Munsons 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   investigators
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   Mirandas
critical safeguard: Munsons ability to control the time at  which
questioning  occurs, the subjects discussed, and the duration  of
the  interrogation.60   Upon  hearing  the  demand  for  a  final
decision,  any reasonable person in Munsons position  would  have
recognized  that his Miranda rights were merely illusory  because
the investigator had seized full control.
           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  suspects  request  by  refusing   to
discontinue the interrogation . . . or by persisting in  repeated
efforts to wear down his resistance and make him change his mind.61
Nor,  as the prosecutor implied below, can Munsons 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:
          Using  an  accuseds 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. [62]
          
That  Munson continued to talk with the interrogator in the  face
of  continued questioning does not diminish the validity  of  his
request.   Munsons  constitutionally-protected right  to  silence
attached as soon as he said Im done talkin, and at that point the
interrogator  was  bound to scrupulously honor  Munsons  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.63  Tina McGraw was sixteen years old when  she
was charged as an accomplice to a rape.64  In response to a police
interrogators  questions, she stated: I dont want to  talk  about
it,  and she indicated that her reason for not wanting to discuss
the  crime  was  because she didnt want to walk the  streets  and
get[] shot and killed for tellin. 65  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.66  That the
defendants  fear was so apparent should have made  it  even  more
clear that she really did not want to talk about the rape.67
          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   Munsons
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.
                         Statement of:
HOMICIDE                 S-PAUL MUNSON

     Q = DETECTIVE HOFFBECK
     D = DETECTIVE PARKER
     A - PAUL MUNSON

Q.   This  is  on  file #99-46526.  Todays 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
     Ill 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.   Im 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 theres a tape recorder there running?
A.   Uhhuh.
Q.   And  uh  youve 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 probly 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 youre 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 were not  in
     the State of Alaska.
A.   Uhhuh.
Q.   Were  in  the  sate 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 youre in this room.. uh  that
     just  indicates  in our computer that youre 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.. ______ youre well aware of what
     I  have  to  do.   I  have to read you  your  Constitutional
     Rights.
A.   Yeah.. Yeah..
Q.   That  there.   Im 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..  theres  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 doesnt pick up some times  when
     you nod so..
A.   Oh OK.
Q.   So if you say it, Id appreciate it ..
A.   Huh..
Q.   You  have the right to talk to a lawyer and have him present
     with you while youre 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 Ive 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..Im not  gonna  tell  you
     everything that I have right now ... and I think you  probly
     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?  Weve already  search
     the  car and we found a ton of evidence already in that car.
     Weve  already  located the shell casing that was  found  out
     there,  and weve matched it up to the gun that your  friend,
     Sam  used to shoot him with, alright?  Weve already done all
     those type of things.  Weve already got statements from uh..
     weve got statements from Bryan, course you already knew that
     there.  And weve also got statements from somebody else, and
     Ill let you hear about those in just a few minutes here, OK?
A.   Nn.
Q.   And  on  those statements there that Im gonna let you  hear,
     youre  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 dont say anything.. the same thingll happen to me?
Q.   Well,  lets  put  it  this way here Paul  ...  when  we  are
     finished  speaking,  whenever that is..  whether  its  in  5
     minutes  or if its in a half hour or whenever it  is,  youre
     going  to  go  to a uh.. a juvenile facility  here  in..  in
     Oregon.
A.   Uhhuh.
Q.   And then tomorrow youre probly... I think the Oregon law  is
     that youre goin be brought before some type of a hearing  at
     that  time..  to find out how you wanta go back  to  Alaska.
     Whether youre going to volunteer to go back to Alaska or  be
     extradited to go back to Alaska.
A.   Uhhuh.
Q.   And  then youll be.. once those hearings are over and if its
     granted  then  youll  be  taken  back  to  Alaska  at   that
     particular time.
A.   So whatll happen to me in Alaska?
Q.   Youll  be  held  accountable to answer to those  charges  of
     murder  in  the first degree and whats the other  one  there
     uh..
D.   Conspiracy to commit murder..
Q.   And  uh  conspiracy to commit murder in the  first  degree..
     youre  going to be held accountable for those..  if..  youre
     charged with those.
A.   So Im gonna go to jail?
Q.   Of course, yes, youre going to go to jail.
A.   And it doesnt matter if I talk or anything?  Right?
Q.   Well that.. thats up to you yknow ... its 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 wasnt.. how  would  you  feel
     about that?
A.   Uh.. Id wanta be the cooperative one..
Q.   Im 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 Id 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 thats your choice..  maybe
     its  a simple answer, maybe its a complicated answer.  Maybe
     you  think  its something to do with your home life.   Maybe
     its  something  to do, you got caught up with  that  night..
     yknow?   I  dont know.. I dont know..  Show you  a  list  of
     names,  Im  sure you could recognize a lot of those  names..
     Those  are the names of the people weve already talked  to..
     You wanta look at that again?
A.   Yeah.  Is this all of em?
Q.   No,  that  aint all of em..  Thats just the list  that  Im..
     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 dont know why we went out there..
Q.   Maybe  you dont 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.  Thats 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  Wolfies
     hands and uh cutting his fingers off.. murdering him..
A.   I didnt say one thing..
Q.   Well,  I dont know, you tell me what happened .. I wasnt  in
     the  car.  I wasnt in the car Paul.  DETECTIVE PARKER  wasnt
     in that car .. its.. how old are you now?
A.   Seventeen
Q.   Youll be 18 .. uh.. December?
A.   Yeah
Q.   You got a long..long life ahead of you.. where you spend  it
     ats.. I dont know where youre 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, Id like to hear em..
A.   What do you want know?
Q.   Well,  its  your story.. why dont 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 theres 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?  Lets 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 thats how we _________
Q.   Where were you living at the time uh.. Paul?
A.   My house..
Q.   And thats 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.  Wheres that car.. where do you think the car is at now?
     I  just  told you where its 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 dont know..
Q.   That was the night after the murder wasnt it?
A.   Nn-nn(Negative) .. no it wasnt.
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 didnt give me a curfew ticket.
Q.   They  didnt  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 thats how you met Sam, right?
A.   Yeah.. ___________
Q.   Do you remember when that was?
A.   N, I had..not good with dates.  I dont know.
Q.   Give  me, give me approximation, do you?  Approximately when
     it was?  Im not gonna hold you to the date on that..
A.   I dont 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 dont..
Q.   Would that be about right though?
A.   I dont 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.. thats how..
Q.   And Eddie?
A.   Me and Shane were there together.
Q.   Uhhuh. .. want some water?
A.   No, no thanks.
Q.   OK.
A.   Thats 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 yknow.. and theyd(?)  fire
     em,  but there never was, cause me and Shane tried to  check
     yknow where they were.. where he said they were.
Q.   Uhhuh.
A.   But I dont.. the first time I saw em was uh... cant remember
     ...   First time I sawem was... we were outside, outside the
     apartment.. it was Shawn(?)
Q.   Is  that when one of the drive-bys came by or suum.. 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 dont 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.   Whats  gonna  happen?  Is Sam gonna  know  what  Im
     saying this?
Q.   Maybe Sams 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, Im done talkin then.
Q.   Before  you make a final decision on that there.. play  that
     tape there for him..
A.   You know whatll happen to me.
Q.   Listen to this here... not what you think is going to..
     Tape playing within a tape:
UM.  ___________ I dont know dude.. uh dude.
UM.  Alright I ... I have some questions I have, because Im  just
     trippin about this whole thing.. did you see Wolfies freakin
     head explode when Sam shot him?
UM.  Yeah.
UM.  You did?
UM.  Uhhuh
UM.  Because  Im just.. cause I .. I looked away and I looked  up
     at  Bryan and Im just tryin to figure out whats happenin and
     everything..
UM.  So you didnt 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 wasnt  too
     far away..
UM.  You were like pretty close to Sam huh?
UM.  ___________ Yeah.. when whend you dream about dude?
UM.  Just about.
Q.   Youve already said it..
A.   I know but..
Q.   So whats the point?  Youve already said it so..
A.   You dont.. you dont understand ...
Q.   What do I dont understand?
A.   All those people.
Q.   What do you think?  What do you think that I dont understand
     ..
A.   You dont..
Q.   No,  no.. youve got something in the back of your mind  that
     you  think  youve magnified.. Sam has got you runnin  scared
     about  something .. you think is going to happen.. Im tellin
     ya..  you think is gonna happen.. let me tell you suum whats
     really  gonna happen.  nothins gonna happen..  Aint  a  dang
     thing gonna happen.
A.   How do you know that?
Q.   I been doin this for about 30 years.
A.   Uhhuh.
Q.   Right?  Its never happened .. it dont 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, thats 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.   Ive talked to Sam..
A.   Can I hear his tape?
Q.   No..  Sams not gonna hear your tape tonight either.  No  hes
     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 Ill tell you the truth
     too,  Im  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.   Im aint gonna tell you where hes at..
A.   No, I just.. I just..
Q.   But the answer to thats no.
A.   So  you  guys  are the ones that had Shane call  us..  Hnn..
     yeah..
Q.   Probly did.  Does that make Shane a bad person?
A.   No it dont.. I ... I..
Q.   Shane goin in farther than you are..
A.   Why?
Q.   Shanes charged more than you are.
A.   So Im the lightest?
Q.   Yeah.   Youre  the light.  youre the light  weight  of  this
     bunch.
A.   Whats Shane and Bryan have?
Q.   Bryans idea, wasnt 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.  Thats it.
Q.   Thats it.. so whatd it sound like when you got out there?
A.   What did what sound like?
Q.   Whatd 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 wasnt really  payin
     attention . . . in the back.  I was in the passenger seat. .
     we were smokin weed.
     
[Transcript of interrogation continues for 54 pages.]

MATTHEWS, Justice, dissenting.
          For  the  reasons expressed by the court of  appeals  I
believe that Munsons statement should not be suppressed.  Because
the court of appeals opinion has not been published, I attach  it
as an appendix.  I have the following additional observations.
          When Munson made his statement Well Im done talkin then
it   was  obvious  that  he  was  afraid  of  reprisals  by   his
accomplices.  Officer Hoffbeck cautioned Munson to listen  before
making a final decision to cut off the interview.  Hoffbeck  then
played a tape of a conversation between Munson and another person
that confirmed Munsons presence at the murder.  After playing the
tape,  Hoffbeck  told  Munson that  his  fear  of  reprisals  was
unrealistic,  based  both  on Hoffbecks  long  experience  as  an
investigator  and the fact that all the actors were  in  custody.
Munson seemed to have been persuaded, asked a few questions about
the  other participants in the crime, and permitted the interview
to continue.
          On  a  common-sense  level,  what  Hoffbeck  did  seems
reasonable.   It  was  responsive to Munsons  concerns1  and  not
coercive, hostile, or repetitive.  It did not suggest that Munson
was not free to refuse to speak further about the crime.  Because
all  of this seems to me to be beyond dispute, I have a hard time
accepting  my  colleagues conclusion that Munsons Miranda  rights
were violated.2
          To  put the matter in a legal framework, it seems to me
that  Munsons statement was an equivocal assertion of his Miranda
right  to silence that the police were not required to understand
as   terminating  the  interrogation.   As  the  courts   opinion
acknowledges, the general rule is that a suspect must  articulate
his desire to cut off questioning with sufficient clarity that  a
reasonable  police officer in the circumstances would  understand
it  to  be  an  invocation of the suspects rights;  equivocal  or
ambiguous   assertions  are  not  enough.3   This  standard   was
initially  developed  in  Davis  v.  United  States  to  evaluate
ambiguous  assertions  of  the  right  to  counsel  by   suspects
undergoing station-house interrogation.4  According to Davis,  if
a  suspect makes a reference to an attorney that is ambiguous  or
equivocal  in  that  a  reasonable  officer  in  light   of   the
circumstances  would have understood only that the suspect  might
be  invoking the right to counsel, our precedents do not  require
the  cessation of questioning.5  The United States Supreme  Court
has  not  said  whether  Davis applies to the  Miranda  right  to
silence,  but several federal courts have applied Davis  in  this
context, and I agree with todays opinion that this is the  proper
approach   here.6   The  standard  is  objective,  and   requires
consideration   of   all   the  circumstances   surrounding   the
declaration  to  determine  its  meaning.7   Further,  whether  a
statement  is an objectively unambiguous assertion of  a  Miranda
right  is  a  question of law for the reviewing court,  at  least
where  (as  here)  there  is  no dispute  as  to  the  underlying
historical  facts.8  These legal principles are  consistent  with
Alaska precedent,9 and appear to be common ground between me  and
the opinion of the court.
           But  we  part  company  with  respect  to  the  courts
treatment of Munsons statement Im done talkin then, in particular
as  to  the  issue  of whether it is proper to  consider  Munsons
reasons for making this statement.  Miranda was devised in  order
to  implement in a police interrogation setting the right not  to
be  a  witness against oneself and the right to counsel.   But  a
suspect  may  refuse to speak for any number  of  reasons  having
nothing  to  do  with  these rights  emotions  such  as  fear  of
reprisals, anger, hostility, and distrust may underlie a  refusal
to speak.  Refusals based on emotions such as these, if persisted
in,  must  be honored,10 but when initially made they  are  often
properly  regarded as only ambiguous or equivocal  assertions  of
the right to silence.11  A signal that the speaker would like  to
stop talking can appear unambiguous in form, yet the context  can
make  it reasonable to understand the statement as something less
than  a clear invocation of the right to silence.  Depending upon
the  surrounding  circumstances, even a  statement  which  itself
appears  to amount to an assertion of the right to remain  silent
(e.g.,  I  aint  saying nothing) may be held  not  to  have  that
effect.12   For  example, a statement that seems  like  a  simple
request  to stop the interrogation may be legitimately understood
as   merely  expressing  an  objection  to  some  aspect  of  the
interrogation, such as an objection to the person conducting  the
interrogation  or the use of a tape recorder.13  Or  refusals  to
continue  speaking  that  are based  on  emotional  or  practical
objections   such as fear of reprisals or anger at  the  way  the
interrogation has proceeded  that have nothing to do with fear of
incrimination can properly be viewed as temporary or provisional.
In  these situations the speakers motive is relevant, and  courts
have  refused  to  find  a  clear  invocation  of  the  right  to
silence.14
          I  do not question that a suspect can assert a right to
silence  in  a police interrogation context when the  suspect  is
motivated  by a fear of reprisals, or even where the suspect  has
no  articulable reason at all for keeping silent.  But I do think
that, where the suspects reluctance to speak is plainly based  on
concerns   unrelated  to  self-incrimination,  and  where   these
concerns  might  be  met by the police in a  way  that  does  not
overpower or belittle the suspects fundamental right to  silence,
the suspects initial objection to speaking should not normally be
understood  as an unambiguous assertion of the right  to  silence
sufficient to cut off further inquiry.15  The key is that  police
attempts  to  meet the objection (until and unless they  are  met
with   a  clear  indication  that  the  suspect  is  hostile   or
indifferent to these attempts) have little potential  to  suggest
that the right against self-incrimination is illusory.
          This  case is an illustration of the foregoing.  Munson
was  given  a  Miranda  warning and was willing  to  waive  these
rights.   What caused him to make his done talkin then  statement
was unrelated to these rights.  In context a fuller expression of
what  he  said  would be Well Im done talkin then  because  I  am
afraid  that  if  I do talk I will be killed by  Camanga.   Since
Munsons statement implies a continued willingness to talk if  the
fear  motivating the refusal could be put to rest, I believe  the
statement should be construed as a merely equivocal invocation of
          the right to silence.16  Put in Davis terms, given the turn the
interrogation had taken when Munson said he was done  talking,  a
reasonable  officer  in  light of the  circumstances  would  have
understood  only  that the suspect might be  invoking  his  right
against   self-incrimination,  as  opposed  to  the   clear   and
unambiguous invocation required to shut down all questioning.17
          Once  a  statement is found to be equivocal,  all  that
should  ultimately be required in response to it  is  noncoercive
conduct  that does not imply that the right to silence  has  been
lost  and  may no longer be exercised.18  That test too would  be
readily met in the present case.
          For  these reasons I would affirm the decision  of  the
court of appeals.
                             NOTICE
     Memorandum decisions of this court do not create  legal
     precedent.   See  Alaska  Appellate  Rule  214(d)   and
     Paragraph 7 of the Guidelines for Publication of  Court
     of  Appeals Decisions (Court of Appeals Order  No.  3).
     Accordingly, this memorandum decision may not be  cited
     for  any proposition of law, nor as an example  of  the
     proper resolution of any issue.

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA

STATE OF ALASKA,              )
                              )           Court of Appeals No. A-
7694
                                      Petitioner,      )       Trial
                              Court No. 3AN-S99-7945 CR
                              )
                              )
                  v.          )
                              )
PAUL DAVID MUNSON,            )
                              )
                           Respondent.  )
                              )
PAUL DAVID MUNSON,            )
                              )           Court of Appeals No. A-
7723
                                      Petitioner,      )       Trial
                              Court No. 3AN-S99-7945 CR
                              )
                              )
                  v.          )              MEMORANDUM OPINION
                              )
STATE OF ALASKA,              )                     AND JUDGMENT
                              )
                             Respondent.   )           [No.  4494
November 21, 2001]
                              )

          Appeal  from the Superior Court,  Third  Judi
          cial   District,   Anchorage,   Michael    L.
          Wolverton, Judge.

          Appearances:   W. H. Hawley,  Jr.,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for   Petitioner  and  Respondent  State   of
          Alaska.   Cynthia L. Strout,  Anchorage,  for
          Respondent and Petitioner Paul David Munson.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge.

          The superior court found that Paul David Munson made an
equivocal statement about his right to silence during a custodial
interview  with the police.  The court  suppressed the  remainder
of  Munsons statement because the police did not clarify  Munsons
intent.  We granted the States petition for review of that order.
Because  case law provides that the police have no obligation  to
clarify an equivocal statement about the right to silence  during
custodial  interrogation, we reverse the order  of  the  superior
court suppressing a portion of Munsons statement.
          We  also  granted Munsons petition for  review  of  the
courts  order that rejected his claim that his statement  to  the
police  was  involuntary.   We  uphold  that  order  because   we
conclude,  as did the superior court, that Munsons statement  was
voluntary.
          Facts and proceedings
          On September 14, 1999, the State charged Munson, Samuel
J. Camanga, Shane M. Clapper, and a juvenile for the September 1,
1999,  homicide  of  Morgan F. Gorsche.  On September  15,  1999,
Anchorage Police Detectives Joseph Hoffbeck and David Parker flew
to  Portland,  Oregon, to arrest Munson.  After  Munsons  arrest,
Hoffbeck and Parker met with Munson at a Portland police  station
and tape recorded their interview.
          Detective  Hoffbeck  advised  Munson  of  his   Miranda
rights.1  Munson stated that he understood those rights.   During
the  interview, Munson admitted that he was involved in  Gorsches
homicide.   The  grand jury indicted Munson and his  cohorts  for
first-degree murder,2 conspiracy to commit first-degree  murder,3
and second-degree murder4 for the shooting death of Gorsche.
          Munson  moved to suppress his statement to the  police,
claiming  he  had  invoked  his  right  to  silence  during   the
interview.   Munson  also contended that  his  statement  to  the
police was involuntary because the police threatened him in order
to  induce  him to waive his rights and confess.  Superior  Court
Judge Michael L. Wolverton concluded that the police should  have
clarified  Munsons ambiguous invocation of his right  to  silence
Well,  Im  done talkin then.  Because the police did not  clarify
that statement but continued to interview Munson, Judge Wolverton
suppressed all of Munsons interview that followed that statement.
Judge   Wolverton  rejected  Munsons  claim  that  he  had   been
threatened and concluded that Munsons statement was voluntary.
          Discussion
          Did  the police threaten Munson such that his statement
was involuntary?
          Detectives  Hoffbeck and Parker met with  Munson  in  a
conference  room  at  the Portland police station  after  Munsons
arrest.   Detective Hoffbeck informed Munson  that  he  had  been
charged with first-degree murder and conspiracy to commit  murder
and  that  his  bail had been set at $500,000.  Hoffbeck  advised
Munson  of his Miranda rights and asked if he understood each  of
them.   He  then detailed the evidence that connected  Munson  to
Gorsches murder:  evidence recovered from Munsons car (which  was
used  to  transport Gorsche to Eklutna where he  was  killed);  a
          shell casing that matched Camangas gun; a statement from B.R., a
juvenile  participant  in  the crime; and  a  statement  from  an
undisclosed  witness, which turned out to  be  a  recorded  phone
conversation of Munsons.  Detective Hoffbeck continued:
          Hoffbeck:    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?

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

          Munson:   So if I dont say anything  ...  the
          same thingll happen to me?

          Hoffbeck:   Well, lets put it this  way  here
          Paul  ...  when  we  are  finished  speaking,
          whenever that is ... whether its in 5 minutes
          or  if its in a half hour or whenever it  is,
          youre  going  to  go to a uh ...  a  juvenile
          facility here in ... in Oregon.

          Munson:  Uhhuh.

          Hoffbeck:    And then tomorrow  youre  probly
          ... I think the Oregon law is that youre goin
          [to] be brought before some type of a hearing
          at that time to ... to find out how you wanta
          go  back  to Alaska.  Whether youre going  to
          volunteer  to  go  back  to  Alaska   or   be
          extradited to go back to Alaska.

          Munson:  Uhhuh.

          Hoffbeck:   And then youll be ... once  those
          hearings  are  over and if its  granted  then
          youll  be  taken  back  to  Alaska  at   that
          particular time.

          Munson:  So whatll happen to me in Alaska?

          Hoffbeck:   Youll  be  held  accountable   to
          answer  to  those charges of  murder  in  the
          first degree and whats the other one there uh
          ...

          Detective   Parker:   Conspiracy  to   commit
          murder ...

          Hoffbeck:  And uh conspiracy to commit murder
          in  the  first degree ... youre going  to  be
          held  accountable for those ... if ...  youre
          charged with those.

          Munson:  So Im gonna go to jail?

          Hoffbeck:  Of course, yes, youre going to  go
          to jail.

          Munson:   And it doesnt matter if I  talk  or
          anything? Right?

          Hoffbeck:   Well  that ... thats  up  to  you
          yknow  ...  its 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?

          Munson:  Uhhuh.

          Hoffbeck:   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 wasnt  ...  how
          would you feel about that?

          Munson:   Uh  ... Id wanta be the cooperative
          one ...

          Hoffbeck:  Im not tellin you what to do.

          Munson:  I ... I know but I ... see ...
          The  discussion  continued, and  Munson  described  the
homicide and his participation in it.  Judge Wolverton found that
Detective Hoffbeck had been candid in his testimony and that  his
demeanor  and  approach  during the  custodial  interrogation  of
Munson  had not been threatening or coercive.  He concluded  that
Munsons confession was voluntary:
          I simply have to find under the circumstances
          of  this case that the scenario presented  by
          Officer Hoffbeck was nonthreatening and didnt
          overbear Mr. Munsons will.  I just dont think
          it  did.   And I understand that the  Supreme
          Court may disagree with me as a legal matter,
          but as it was posed, this is the problem that
          I  have  with it.  ...[I]ts one thing to  say
          ... if you dont cooperate ... youre going  to
          get harsh treatment, so you dont have to talk
          if  you dont want to, but boy, youre going to
          get  treated  harsher,  as  opposed  to  this
          instance.   And I really think  this  is  the
          truth of the matter, that Mr. Munson asked an
          honest  question,  and ...  [got]  an  honest
          answer.
          Munson   contends  that  the  scenario   described   by
Detective Hoffbeck was a threat.  Munson argues that because  the
scenario was a threat, the superior court should have applied the
presumption from Beavers v. State5 that any statement induced  by
a threat is involuntary.6
          In Beavers, two state troopers questioned Beavers in  a
police  vehicle  outside  the restaurant where  Beavers  worked.7
Beavers  was  sixteen years old at the time.8  The troopers  told
Beavers that he was not under arrest, had not been charged with a
crime,  and  was free to end the interview at any  time.9   While
questioning  Beavers about his involvement in several  robberies,
one   of  the  troopers  emphasized  the  importance  of  Beavers
cooperating and telling the truth.10  The trooper said:
          I  know  that when youre young, you  do  some
          stupid  stuff,  make a,  make  a  wrong  turn
          somewhere, okay.  And, and you do some  crazy
          stuff,  okay?  But, if youre, if you try  and
          hide  it  from me youre really going  to  get
          hammered.  I mean its, you gotta come out and
          tell me the truth on this stuff, okay?[11]
          The  Alaska  Supreme  Court  held  that  threat-induced
confessions  are  presumptively  involuntary  absent  affirmative
evidence  that  the  suspects  will  was  not  overcome  by   the
threats.12   The  court  concluded that Beaverss  confession  was
involuntary  under  this standard because the troopers  statement
that  Beavers  would  get hammered if he attempted  to  hide  his
involvement  in  the robberies conveyed the unmistakable  message
that  Beavers would be punished for exercising his constitutional
right  to  silence.13  The court found no affirmative indications
that these threats had not overcome Beaverss will.14
          In  reaching this conclusion, the supreme court  relied
heavily  on  the  Ninth Circuits decision  in  United  States  v.
Harrison.15   Harrison, who was suspected  of  money  laundering,
opened  the door of her home to find some fifteen federal  agents
with  guns  drawn.16   The agents searched  Harrisons  house  and
arrested  her and her companion.17  Harrison was advised  of  her
Miranda rights.18  Then, after a brief silence, an agent informed
Harrison  of the evidence linking her to the crime and  told  her
she  could  face a 20-year sentence.19  The agent then asked  her
whether  she  thought it would be better if the judge  were  told
that  she had cooperated or had not cooperated.20   Harrison said
it  would be better if she talked to the agents and they told the
judge  she had cooperated.  Harrison then confessed her  role  in
the crime.21
          The Ninth Circuit concluded the police acted improperly
by  suggesting to Harrison that they might inform the  court  she
had  not  cooperated.22  The court concluded that [a]lthough  the
agents  thinly veiled their implied message behind  a  rhetorical
question, Harrison could only conclude that she might suffer  for
her  silence.23  In reaching this conclusion, the  Ninth  Circuit
observed  that  police generally may suggest to a defendant  that
cooperation could result in a more lenient sentence.24   And  the
court   acknowledged  that  suggestions  to  a   defendant   that
cooperation will result in a more lenient sentence and threats to
          inform the prosecutor of the defendants refusal to cooperate are
simply  different sides of the same coin:  waive your rights  and
receive more favorable treatment versus exercise your rights  and
receive  less favorable treatment. 25   But the court  noted  two
circumstances distinguishing threats from promises of leniency.26
First,   a   defendant  may  benefit  from  learning  about   the
possibility  of  a reduced sentence.27  Second, speculation  that
cooperation  will  benefit the defendant,  or  even  promises  to
recommend leniency, generally are not sufficiently compelling  to
overbear  a  defendants  will.28   By  contrast,  there   is   no
legitimate  purpose for the statement that failure  to  cooperate
will be reported.29  The supreme court recognized this difference
in  Beavers:  [We]  agree  with the  Ninth  Circuits  distinction
between promises of leniency and threats of harsher treatment.30
          Munson   argues  the  threat  in  Harrison  is   nearly
identical  to Detective Hoffbecks scenario.  He claims  the  only
purpose of Hoffbecks rhetorical question was to suggest to Munson
that  he  would be punished for asserting his right  to  silence.
Thus,  Munson  argues the scenario was inherently coercive  under
Harrison and Beavers.
          We  agree with Judge Wolverton that Detective Hoffbecks
scenario  did  not threaten Munson with harsher treatment  if  he
asserted his right to silence.  As the State points out, Hoffbeck
did  not threaten to inform the judge of Munsons non-cooperation,
as  did  the  federal  agents in Harrison.31   Nor  did  Hoffbeck
threaten that Munson would be treated more harshly than normal if
he  did  not  cooperate, as was the case in  Beavers.32   Rather,
Detective   Hoffbeck   presented  a   scenario   that   suggested
cooperation  might  work to Munsons benefit.   The  fact  that  a
benefit  might flow from cooperation is not the equivalent  of  a
threat  of  harsher  treatment in the event  of  non-cooperation.
Hoffbeck  told Munson that he was not making a threat or  promise
or  telling  him  what  to  do.  And at  the  conclusion  of  the
interview,  Munson acknowledged that he had not been  threatened.
Accordingly, Munsons confession was not presumptively involuntary
under Beavers.
          Judge  Wolverton also concluded that Munsons  statement
was voluntary under the traditional totality of the circumstances
test.   A confession is involuntary if an examination of all  the
circumstances  discloses that the conduct of law enforcement  was
such  as  to overbear (the defendants) will to resist  and  bring
about  confessions not freely self determined.33   In  evaluating
the  totality  of  the  circumstances  to  determine  whether   a
confession  was  voluntary, we consider the age,  mentality,  and
prior  criminal experience of the accused; the length,  intensity
and   frequency  of  interrogation;  the  existence  of  physical
deprivation  or  mistreatment; and the  existence  of  threat  or
inducement.34   The  State  has  the  burden   to   show   by   a
preponderance of the evidence that a confession was  voluntary.35
When the accused is a juvenile this is a heavy burden of proof.36
          We  independently examine the record to  determine  the
defendants mental state and its legal significance and  base  our
conclusion on the voluntariness of the confession on the totality
of the circumstances surrounding the defendants statement.37          Munson argues
          that the following circumstances show his confession was involuntary:  he was
seventeen years old, under arrest, told he was charged with first-degree murder with
bail set at $500,000, and interrogated outside Alaska without a parent present.  On
the other hand, Munsons interview lasted less than two hours.  Munson had something
to drink and was offered crackers.  There was no evidence that Munson was physically
exhausted.  Detective Hoffbeck testified that Munson did not appear to be under the
influence of alcohol or drugs.  Judge Wolverton found that Hoffbecks demeanor was
nonthreatening.  And this was not Munsons first contact with police officers for a
serious crime; Munson previously had been interviewed by police and confessed to a
burglary of a record store in Anchorage.  From our independent review of the record,
we conclude that Munsons statement was voluntary.
           We next address a remaining point raised by the State.
The  State  claims that Beavers, which the supreme court  decided
after  Munsons  interview  with  the  police,  should  not  apply
retroactively  because it announced a new  rule  of  law  that  a
threat-induced confession is presumptively involuntary.  However,
this argument is moot because the scenario described by Detective
Hoffbeck was not a threat.
          Did Munson invoke his right to silence?
               Munson next claims he invoked his right to silence
during  his interview with Detective Hoffbeck and therefore,  any
post-invocation   statements  should  be  suppressed.    In   the
interview, Munson discussed the events leading up to the homicide
but  became hesitant when the topic moved to Camangas involvement
with the guns.
          Hoffbeck:  Who brought [the guns] over?
          Munson:  Sam [Camanga].
          Hoffbeck:  Sam brought em over?  How many did
          he bring over that time?
          Munson:  What?
          Hoffbeck:  Guns ...
          Munson:  I saw one ...
          Hoffbeck:  What uh ... what was that?
          Munson:   Think it was the 9 mm ... or .45, I
          dont know.
          Hoffbeck:  Well, both of these type  show  up
          there  so ... which one is the first one,  do
          you remember?
          Munson:  I think it was the .45.
          Hoffbeck:  .45?
          Munson:  Uhhuh.  Whats gonna happen?  Is  Sam
          gonna know Im saying this?
          Hoffbeck:  Maybe Sams already talked to me.
          Munson:  No, but ...
          Hoffbeck:  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, Im done talkin then.
          Hoffbeck:   Before you make a final  decision
          on  that  there ... play that tape there  for
          him ...
          Munson:  You know whatll happen to me?
          Hoffbeck:  Listen to this here ...
          The  officers  then  played  a  tape  recording  of   a
conversation  seized  under  a Glass warrant38  in  which  Munson
admitted  watching Camanga shoot Gorsche in the  head.   Hoffbeck
pointed  out  that the tape recording showed Munson  already  had
admitted  that he witnessed the murder and that Camanga  was  the
shooter.   He  also  reassured  Munson  that  Camanga  would  not
retaliate.   The  interview continued, and  Munson  continued  to
describe his involvement in the homicide.
           In  the  superior court, Munson raised  a  two-pronged
claim that he had invoked his right to silence.  First, he argued
that he clearly invoked his right to silence and that anything he
said  after  that  statement  had  to  be  suppressed.   In   the
alternative,  he argued that if his invocation of  his  right  to
silence  was   ambiguous  or equivocal, then  the  officers  were
obliged  to  clarify  the ambiguity before  proceeding  with  the
interview.  The State argued that Munson had not clearly  invoked
his  right  to  silence but that his comment  about  silence  was
equivocal because it expressed Munsons concern that Camanga would
learn  that he had talked to police.  The State also argued  that
when  a  defendant makes an equivocal reference to the  right  to
silence,  a  police  officer  has no obligation  to  clarify  the
reference.   However, the State claimed that  Detective  Hoffbeck
clarified Munsons statement.
          At   the   evidentiary   hearing,  Detective   Hoffbeck
testified  he  did  not believe Munson was exercising  a  Miranda
right  to  silence  when  he said, Well,  Im  done  talkin  then.
Instead,  Hoffbeck thought Munson was expressing a  concern  that
Camanga  would learn what he was telling the police and retaliate
against him.
          Judge Wolverton found Detective Hoffbecks testimony  on
the  issue was honest and candid.  But Judge Wolverton held  that
Hoffbeck  was  required  to  clarify what  Munson  meant  by  his
statement Well, Im done talkin then by either reaffirming Munsons
waiver  or  by  readvising  him of the  Miranda  warnings  before
continuing.   Implicit  in  Judge  Wolvertons  analysis  is   his
rejection  of  Munsons  claim that he  had  made  an  unequivocal
assertion  of his right to silence.  If Munson had made  such  an
unequivocal  assertion,  then no clarification  would  have  been
needed; the interview should simply have ended.39
          Judge   Wolverton  concluded  that  Detective  Hoffbeck
mistakenly  believed there was a distinction between a defendants
invocation  of  the right to silence and a request  for  counsel.
Judge  Wolverton  agreed  with  Munsons  position  that  the  law
recognizes  no  distinction  between a  defendants  assertion  of
either right.
          Alaska  law  does  require the  police  to  clarify  an
equivocal  or  ambiguous  request  for  counsel.   In  Hampel  v.
State,40  we  noted that the case law divided into two  generally
recognized  approaches  when a defendant  made  an  ambiguous  or
equivocal request for counsel:
          Some   courts,  interpreting  literally   the
          language in Miranda that the right to counsel
          may  be invoked in any manner, have held that
          all questioning must cease upon any reference
          to  counsel, however ambiguous or  equivocal.
          The  second approach is to permit  a  limited
          inquiry  for  the  purpose  of  clarification
          after  an  accused  makes  a  statement  that
          arguably might be construed as a request  for
          counsel.

          In  Giacomazzi  v. State, 633 P.2d  218,  222
          (Alaska  1981),  the  Alaska  Supreme   Court
          implicitly rejected the first approach, while
          approving  of  the  second.   In  noting  the
          difficulty   for   a   police   officer    in
          determining whether a suspect indeed  intends
          to  invoke  his  right to  have  an  attorney
          present, the court stated:  For this  reason,
          the  officer  may seek clarification  of  the
          suspects  desires.  Permitting  clarification
          of   an  accuseds  request  is  necessary  to
          protect his rights without unduly interfering
          with  reasonable  police  questioning.   This
          approach avoids the rigid rule of prohibiting
          further  questioning upon any vague reference
          to  an  attorney, while providing police  and
          the courts with a standard which protects the
          rights  of  those who desire the presence  of
          counsel  at  questioning but  whose  requests
          fail  to  meet  an  arbitrary  threshold   of
          clarity.

          We   therefore   follow  the   second,   more
          pragmatic,   approach.    In   keeping   with
          Giacomazzi,  we  hold that when  the  accused
          makes an ambiguous or equivocal reference  to
          counsel during a custodial interrogation, the
          officer  need  not immediately terminate  the
          interrogation.  Further questioning, however,
          must  be limited to clarifying the reference.
          Thus,  any questioning on the subject  matter
          of  the investigation must be suspended until
          the intent of the accused is clarified.[41]

          The United States Supreme Court has since adopted a new
standard   when  an  accused  makes  an  ambiguous  or  equivocal
reference  to  counsel.  In Davis v. United States,42  a  closely
divided Court reasoned that if a suspect makes a reference to  an
attorney  that  is  ambiguous or equivocal in that  a  reasonable
officer in light of the circumstances would have understood  only
that  the  suspect might be invoking the right  to  counsel,  our
precedents  do  not require the cessation of questioning.43   The
majority  stated: If the suspects statement is not an unambiguous
or   unequivocal  request  for  counsel,  the  officers  have  no
obligation to stop questioning him.44
          Since  this  decision, courts have  extended  Davis  to
cases  where  a  suspect  has  made  an  ambiguous  or  equivocal
          reference to the right to silence.45  Furthermore, in Hampel v.
State,  we  noted  that  the right to  counsel  is  more  rigidly
observed  than the right to silence and that situations  where  a
defendant  made an ambiguous or equivocal reference to his  right
to silence were distinguishable from situations where a defendant
made  an  equivocal reference to the right to counsel.46  Several
Alaska cases supported that distinction.  For example, in Vail v.
State,47 the supreme court upheld continued police questioning of
one  co-defendant who had waived his Miranda rights but said that
he  did  not want to talk about his co-defendant.48  The  supreme
court concluded that this remark was an ambiguous remark that was
not  intended  to cut off questioning entirely.49  In  Pierce  v.
State,50  we rejected a claim that the State had not  shown  that
Pierce  had waived his rights.51  Pierce told the police that  he
was not sure that he wished to waive his rights but continued  to
answer questions.52  In Nashoalook v. State,53 we concluded  that
a  fair  and  common sense reading of the totality of Nashoalooks
interview   with  the  police  did  not  reflect  an  intent   on
Nashoalooks part to cut off questioning entirely.54  Instead,  we
concluded  that Nashoalook was concerned that the  interview  was
being  tape recorded and that others in his community would  find
out  what he told the police.55  Because the circumstances around
Nashoalooks  refusal  to  answer  questions  were  ambiguous,  we
concluded that further questioning was not prohibited.56
          Detective  Hoffbeck testified that  he  concluded  from
Munsons  statement, Well, Im done talkin then,  that  Munson  was
afraid  Camanga would retaliate against him if he talked  to  the
police.  Detective Hoffbeck stated he did not believe that Munson
was  exercising  his  right  to  remain  silent.   Therefore,  he
continued  to  talk  with  Munson to  allay  his  concerns  about
retaliation.
          Judge Wolverton accepted Detective Hoffbecks testimony,
finding  it  to be candid and honest.  Furthermore, an  objective
reading  of the transcript of Detective Hoffbecks interview  with
Munson supports the conclusion that Munson was expressing fear of
retaliation  rather than exercising his right to  remain  silent.
Under  these  circumstances, we conclude that Detective  Hoffbeck
did  not  violate Munsons constitutional right to  remain  silent
when  he  continued  to interview Munson after  Munson  made  the
statement Well, Im done talkin then.
          Conclusion
          We  AFFIRM  the  superior courts order  that  concluded
Munsons confession was voluntary.  We REVERSE the superior courts
order  suppressing the portion of Munsons interview after  Munson
said, Well, Im done talkin then.






























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

     2     A  transcript of the relevant portion of the interview
is attached to this opinion as an appendix.

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

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

     5    Id. at 14.

     6     Id.   Judge  Wolverton  suppressed  Munsons  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 suspects intent to exercise his right against
self-incrimination.

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

     8    512 U.S. 452, 461-62 (1994).

     9     State  v.  Munson, Mem. Op. & J., No.  4494  at  15-17
(discussing  development  of  state  and  federal  law  regarding
ambiguous invocations of right to counsel).

     10    Id. at 16 n.45.

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

     12    Id. at 19.

     13    U.S. Const. amend. V.

     14    Alaska Const. art. I,  9.

     15     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).

     16    Id.

     17    Id.

     18    Id.

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

     20    State v. Munson, Mem. Op. & J., No. 4494 at 19.

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

     22     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.

     23     Our  review  of the transcript from  the  evidentiary
hearing  convinces  us that Judge Wolvertons  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 Munsons request was ambiguous.

     24     Miranda  v.  Arizona,  384  U.S.  436  (1966)  (Fifth
Amendment protection against self-incrimination grants to suspect
in  custodial interrogation right to counsel and right to  remain
silent).

     25     Id.  at 439; Beavers v. State, 998 P.2d 1040, 1045-46
n.25 (Alaska 2000); see also Dickerson v. United States, 530 U.S.
428, 435 (2000).

     26     See, e.g., United States v. Patane, 542 U.S. 630, 638
(2004).

     27    Miranda, 384 U.S. at 477; Beavers, 998 P.2d at 1045  &
n.25.

     28     Dickerson, 530 U.S. at 435 (discussing  Miranda,  384
U.S. at 442, 479).

     29    Missouri v. Seibert, 542 U.S. 600, 608 (2004).

     30    See Smith v. Illinois, 469 U.S. 91, 99 n.8 (1984).

     31    Dickerson, 530 U.S. at 433-34.

     32    Smith, 469 U.S. at 95; see also Edwards v. Arizona, 451
U.S. 477, 486 n.9  (1981).

     33    United States v. Patane, 542 U.S. 630, 639 (2004).

     34    Dickerson, 530 U.S. at 444.

     35    Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

     36    Id. at 444-45 (emphasis added).

     37    Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).

     38     Id.  at  104.   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 suspects invocation of  the  right  to
silence,  but  it found that Mosleys 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.   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.

     39    Emspak v. United States, 349 U.S. 190, 194 (1955).

     40    Davis v. United States, 512 U.S. 452, 459 (1994).

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

     42    Miranda, 384 U.S. at 477.

     43    Davis, 512 U.S. at 459.

     44    Hoffman v. United States, 341 U.S. 479, 486-87 (1951).

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

     46    Michigan v. Mosley, 423 U.S. 96, 104 (1975).

     47    Id. at 106.

     48     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 Courts 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 Courts 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.)

     49    Davis, 512 U.S. at 461.

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

     51    We note that Detective Hoffbeck himself had a different
understanding  of Mirandas requirements.  He testified  that,  in
order to invoke his Miranda rights, a suspect must either ask for
an  attorney  or stop talking; but a suspects statement  that  Im
done  talking,  Ive got nothing more to say, or Im   finished,  I
quit imposes no duty on an investigator to stop asking questions.
While  a  more limited statement than Im 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   Munsons   broad  statement   as   anything   but   an
unconditional request to cut off all questioning.

     52     On direct examination at the suppression hearing, the
investigator  acknowledged  that  Munson  wanted  to   stop   the
interrogation,  but  indicated that he  didnt  view  this  as  an
invocation  of the Miranda rights; the only reason  he  suggested
for  this  view  was  that  Munsons  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  hes
               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 didnt  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
               didnt  really want Sam to hear  what  he
               had  to say.  And so at that point  then
               he  says, no, I got nothing  I  dont   I
               want  a  I forget exactly the  the words
               he said.  But I said, before you make up
               your  final mind, listen to what   whats
               on this tape here.
               
(Emphasis added.)

          Returning  to this issue in his cross-examination,  the
investigator  cemented  the point that  he  hadnt  seen  anything
circumstantially ambiguous in Munsons 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,  Im  done
               talking,  then, you didnt  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  Im
               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,
               Im  done  talking, to ask them  are  you
               done talking . . .
               
          A.   They  -- Ive heard that said to me many times
               in an interview . . .
               
          Q.   No . . .
     
          A.    . . . Ive got nothing more to say, Im --  Im
     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 theres no distinction
               between saying, Im done talking, that  --  it
               doesnt matter until they ask for a lawyer, is
               that what youre . . .
               
          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
Munsons  request.  In the investigators 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 courts 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  investigators
testimony   however well-intentioned it might have  been   simply
betrayed  a  fundamentally  incorrect  understanding  of  Mosleys
requirement that police conducting a custodial interrogation must
scrupulously honor any clear attempt by the defendant to cut  off
questioning entirely.

     53     Rhode  Island  v.  Innis, 446 U.S.  291,  301  (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).

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

     55     James v. State, 75 P.3d 1065, 1068 (Alaska App. 2003)
(footnotes omitted) (quoting Hoffman v. United States,  341  U.S.
479, 486-87 (1951)).

     56     2 W.R. LaFave, et al., Criminal Procedure  6.9(g)  at
606 (2d ed. 1999).

     57     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 LaFaves 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.,  Dont
          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.

     58     While the Miranda test is an objective one  that  is,
the  court  must objectively evaluate whether Munsons  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 investigators 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  defendants  request to stop talking.  Because  the  officers
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.

     59    Munsons statement of Well, Im 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 investigators  response
to  Munsons  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.

     60    Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).

     61    Id. at 105-06.

     62    Smith v. Illinois, 469 U.S. 91, 98-99 (1984) (citation
omitted) (emphasis in original).

     63    257 F.3d 513 (6th Cir.) (2001).

     64    Id. at 514.

     65    Id. at 515.

     66    Id. at 519.

     67    Id.

1      Playing  the  surreptitiously  recorded  tape   in   which
Munson  and  another participant discuss the crime  was  probably
intended  as  a  persuasive  tool to  convince  Munson  to  talk,
regardless of his reasons for not talking.  But the fact that one
has  already been tricked by a co-participant into making a tape-
recorded statement about a crime would be relevant to a defendant
who  is  hesitant to speak because of fear of reprisals.  As  the
state  argues, the tape showed that as a reason to  stop  talking
fear of retaliation by Camanga . . . was irrational as Munson had
already  incriminated  Camanga  in the  surreptitiously  recorded
conversation.

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

     3     Slip  Op.  at 11; Medina v. Singletary, 59 F.3d  1095,
1101   (11th   Cir.  1995)  (rejecting  equivocal  or   ambiguous
invocation).

     4    512 U.S. 452, 459 (1994).

     5    Id.  Many cases have adopted this statement as the crux
of the Davis test.  See, e.g., Fitz v. State, 566 S.E.2d 668, 672
(Ga.  2002);  Taylor v. State, 689 N.E.2d 699, 703  (Ind.  1997);
Commonwealth v. Jones, 786 N.E.2d 1197, 1206 (Mass. 2003).

     6     See United States v. Hurst, 228 F.3d 751, 759-60  (6th
Cir.  2000); United States v. Banks, 78 F.3d 1190, 1197 (7th Cir.
1996), vacated on other grounds, Mills v. United States, 519 U.S.
990 (1996); Medina, 59 F.3d  at 1101.

     7     See Slip Op. at 11 (test is based on how the statement
would   be   understood   by   a  reasonable   officer   in   the
circumstances);  Davis,  512  U.S.  at  459  (same);   see   also
Nashoalook  v.  State,  663  P.2d 975,  977  (Alaska  App.  1983)
(rejecting argument that defendant had invoked Miranda  right  to
silence,  based on totality of circumstances); United  States  v.
Johnson,  56  F.3d  947, 955 (8th Cir. 1995) (similar).   In  the
analogous context of determining whether a suspect is in  custody
for  Miranda  purposes,  we have adopted an  objective  test  and
explicitly  rejected a subjective test based on the  thoughts  of
the  police officer or defendant.  State v. Salit, 613 P.2d  245,
257  (Alaska 1980); see also Hampel v. State, 706 P.2d 1173, 1181
n.7  (Alaska App. 1985) (in measuring the coercive effect  of  an
officers  response  to an equivocal assertion  of  the  right  to
counsel,  We emphasize that the standard we adopt is an objective
one,  and  does  not  depend  on the  subjective  intent  of  the
interrogating officer.).

     8     See  State v. Ridgley, 732 P.2d 550, 554 (Alaska 1987)
(while determinations of observable facts are reviewed for  clear
error,  inferences of suspects mental state based  on  observable
facts and the ultimate voluntariness of confession are subject to
de novo review); State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002)
(similar, whether suspect was in custody for Miranda purposes was
mixed  question  of law and fact).  I note that some  cases  from
other  jurisdictions  review  purported  invocations  of  Miranda
rights  under the clearly erroneous standard.  See, e.g.,  United
States  v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995).   There  is
however  a  good  argument  that these  decisions  are  not  only
inconsistent  with  our  precedent, but contrary  to  Ornelas  v.
United States, 517 U.S. 690 (1996).  Ornelas holds that once  the
historical  facts are established, probable cause determinations,
including  whether  the  facts suffice to generate  a  reasonable
suspicion in a reasonable officer, are to be determined  de  novo
on appeal.  The United States Supreme Court has further suggested
that  Ornelas should govern decisions on whether Miranda has been
invoked.  See Mills v. United States, 519 U.S. 990 (1996).

     9     See, e.g., Nashoalook, 663 P.2d at 977-78 (viewing the
totality of the circumstances, defendants refusal to speak  could
be  understood as an objection to tape-recording rather  than  an
objection  to  interrogation  in  any  form,  was  therefore   an
ambiguous  or  equivocal invocation of the right to silence,  and
thus did not obligate the police to cease further interrogation).

10    In  a  police  interrogation setting,  but  not  in  court.
See  Minnesota  v. Murphy, 465 U.S. 420, 429-30  (1984)  (Miranda
does  not  apply  outside the context of the inherently  coercive
custodial interrogations for which it was designed; outside  such
contexts  a person is required to answer a question unless  there
is  some  rational  basis for believing that it will  incriminate
him)  (internal  quotation  marks  omitted);  United  States   v.
Kilgroe,  959  F.2d  802, 804-05 (9th Cir. 1992)  (the  courtroom
.  .  .  is  not the type of setting that would justify  invoking
Mirandas  prophylactic rule. The Miranda Court itself  recognized
that  the  compulsion  to speak in the isolated  setting  of  the
police  station  may  well be greater than  in  courts  or  other
official   investigations,  where  there  are   often   impartial
observers  to guard against intimidation or trickery. ) (footnote
and  citation  omitted); 1 John W. Strong et  al.,  McCormick  on
Evidence   123,  at  472 (5th ed. 1999) (in-court  assertions  of
privilege  appear  to  require at least  a  theoretical  risk  of
[criminal]  liability); cf. Kastigar v. United States,  406  U.S.
441  (1972) (government may compel testimony from witnesses  over
self-incrimination  objections  if  the  witnesses  are   granted
immunity from prosecution).

     11   Numerous illustrative cases are collected in 2 Wayne R.
LaFave  et al., Criminal Procedure  6.9(g), at 607 n.141 (2d  ed.
1999).

     12   Id.  6.9(g), at 607 (footnote omitted).

     13    See, e.g., Nashoalook, 663 P.2d at 977-78 (refusal  to
speak  was,  viewed  in  context, based  on  objection  to  tape-
recording); Henry v. State, 574 So. 2d 66, 69 (Fla. 1991) (Im not
saying   nothing   to  you  in  context  an  objection   to   the
interrogator, not an invocation of the right to silence).

     14   See, e.g., United States v. Sanchez, 866 F. Supp. 1542,
1559  (D.  Kan.  1994)  (I  cant say  nothing  ambiguous  because
reasonably  interpreted by the trooper to essentially  mean  that
the  defendant could not say anything for fear of reprisal by his
cohorts,  rather  than  an invocation  of  his  right  to  remain
silent.);  State  v. Williams, 535 N.W.2d 277,  281,  284  (Minn.
1995) (After being accused of lying suspect stated I dont have to
take  any  more . . . . and walked out of the interrogation  room
and  back  to  his  cell; suspects statement  and  behavior  were
motivated  by  anger  and did not amount to  an  unequivocal  and
unambiguous invocation of his right to remain silent.).

     15     The  suspects  dogged  refusal  to  speak,  and   the
interrogators determination to overcome this refusal, distinguish
McGraw  v.  Holland, 257 F.3d 513 (6th Cir. 2001),  from  Munsons
case.  In McGraw the suspect refused to speak eight or nine times
but  the detective continued to insist that she answer:   I  just
dont  wanna  talk  about it, she said for  the  eighth  or  ninth
time.  .  .  .  Refusing to take no for an answer, the  detective
kept  urging full disclosure.  Id. at 515.  In addition, far from
suggesting  as Officer Hoffbeck did in this case that  the  final
decision  to  cut  off  questioning was up to  the  suspect,  the
detective  in McGraw told the suspect that she had to talk  about
the  crime.   Stressing  the  repeated  nature  of  the  suspects
refusals  to  talk (so describing them several times  during  the
opinion)  the  Sixth  Circuit concluded:  Any  reasonable  police
officer,  knowing that exercise of the right to silence  must  be
scrupulously  honored,  would  have  understood  that  when  Tina
repeatedly  said  she did not want to talk about  the  rape,  she
should not have been told that she had to talk about it.  Id.  at
518  (first emphasis added).  The repeated nature of the suspects
refusals was an important factor underlying the courts conclusion
that the suspect had unambiguously asserted her right to silence:
          Tinas lawyer does not deny that an invocation
          of  the  right to silence, if  it  is  to  be
          effective, must be unambiguous as  well.   As
          far as we can see, however, there was nothing
          ambiguous  about  Tinas  repeated  insistence
          that she did not want to talk about the rape.
          When Tina kept saying, without qualification,
          that she just did not want to talk about  the
          subject  making these declarations after  she
          had  been  formally advised of her  right  of
          silence  it would simply not be reasonable to
          take her words at less than face value.
Id. at 519 (emphasis added).



     16    Hoffbeck testified that he did not believe that Munson
was  invoking  his  Miranda rights.   This,  of  course,  is  not
binding,  but, as the court of appeals noted, it is supported  by
an objective reading of the transcript.

     17   512 U.S. at 459.

     18    Davis permits officers to ignore ambiguous invocations
of  the  Miranda right to counsel, 512 U.S. at 461-62,  and  this
approach has been adopted by some but not all jurisdictions  with
respect  to the right to silence.  Compare Coleman v. Singletary,
30  F.3d 1420, 1424 (11th Cir. 1994) (applying Davis; police have
no  duty  to clarify ambiguous invocation of the right to silence
and  may  continue  asking  questions),  with  United  States  v.
Ramirez,  79  F.3d 298, 304 (2d Cir. 1996) (appearing  to  impose
duty  to  clarify).   Alaska law has taken a  somewhat  different
approach  to  the right to counsel, and it seems  appropriate  to
apply a similar analysis to the right to silence.  In Mallott  v.
State, 608 P.2d 737 (Alaska 1980), in the context of an equivocal
request  for counsel, we stated that the reason why an invocation
of  Miranda  rights must be appropriately responded  to  is  that
ignoring  or  rebuffing  a  suspects invocation  of  his  or  her
constitutional rights will convince the suspect that such  rights
are  illusory.  Id. at 742.  We stated that this had not occurred
under  the  circumstances of that case:   Had  Mallott  initially
desired counsel to protect his right to remain silent, we do  not
believe  the initial trooper response and the interrogation  just
described  would  have  convinced him  that  a  second  attempted
exercise of his rights would have been futile.  We therefore find
the  trooper  response  to Mallotts request  for  counsel  proper
.  .  . .  Id. at 743.  This aspect of Mallott can be used  as  a
standard  to decide whether a particular response to an equivocal
assertion of the right to silence is legally acceptable.

1     See  Miranda  v.  Arizona, 384 U.S. 436, 444-45,  86  S.Ct.
1602, 1612, 16 L.Ed.2d 694 (1966).

     2    AS 11.41.100(a)(1)(A); AS 11.16.110.

     3    AS 11.31.120.

     4    AS 11.41.110(a)(1), (2); AS 11.16.110.

5    998 P.2d 1040 (Alaska 2000).

     6    See id. at 1045-46, 1048.

     7    See id. at 1041.

     8    See id. at 1042.

     9    See id.

     10   See id.

     11   Id.

     12   See id. at 1048.

     13   Id.

     14   See id.

     15    See  id.  at  1046-47  (discussing  United  States  v.
Harrison, 34 F.3d 886 (9th Cir. 1994)).

     16   See Harrison, 34 F.3d at 890.

     17   See id.

     18   See id.

     19   See id.

     20   See id.

     21   See id.

     22   See id. at 891.

     23   Id.

     24   See id.

25   Id.

     26   See id.

     27   See id.

     28   See id.

     29    Id.  (quoting United States v. Tingle, 658 F.2d  1332,
1336 n.5 (9th Cir. 1981)).

     30   Beavers, 998 P.2d at 1047.

     31   34 F.3d at 890.

     32   998 P.2d at 1042.

     33    Stobaugh  v.  State, 614 P.2d 767, 772  (Alaska  1980)
(quoting United States v. Ferrara, 377 F.2d 16, 17 (2d Cir. 1967)
(citations omitted)).

     34    Sprague  v.  State, 590 P.2d 410,  414  (Alaska  1979)
(quoting  Brown  v. United States, 356 F.2d 230, 232  (10th  Cir.
1966)).

     35   See Beavers, 998 P.2d at 1044.

     36   See id.

     37   See id.
38    See  State  v. Glass, 583 P.2d 872, 881 (Alaska  1978),  on
rehearing,  596  P.2d 10 (Alaska 1979) (holding  that  under  the
Alaska Constitution the police must obtain judicial authorization
before surreptitiously recording a private conversation).

     39    See Michigan v. Mosley, 423 U.S. 96, 103-04, 96  S.Ct.
321, 326, 46 L.Ed.2d 313 (1975).

     40   706 P.2d 1173 (Alaska App. 1985).

41   Id. at 1179-80 (citations omitted).

     42   512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).

     43    Id., 512 U.S. at 459, 114 S.Ct. at 235; 129 L.Ed.2d at
362.

     44   Id., 512 U.S. at 461-62, 114 S.Ct. at 2356, 129 L.Ed.2d
at 362.

     45    See United States v. Hurst, 228 F.3d 751, 759-60  (6th
Cir.  2000);  United States v. Banks, 78 F.3d 1190, 1197-98  (7th
Cir.  1996), vacated sub nom., Mills v. United States,  519  U.S.
990,  117 S.Ct. 478, 136 L.Ed.2d 373 (1996), on remand, 122  F.3d
346  (7th  Cir. 1997); Coleman v. Singletary, 30 F.3d 1420,  1424
(11th  Cir. 1994); Evans v. Demosthenes, 902 F. Supp. 1253, 1258-
59  (D.  Nev.  1995) (predicting that Ninth Circuit  would  apply
Davis  to the right-to-silence context), affd 98 F.3d 1174,  1176
(9th  Cir. 1996) (leaving open the question of whether the  Davis
rule  extends  to right to silence); Bowen v. State,  911  S.W.2d
555,  565  (Ark. 1995); People v. Arroya, 988 P.2d 1124,  1130-31
(Colo.  1999);  State v. Owen, 696 So.2d 715,  718  (Fla.  1997);
State v. Whipple, 5 P.3d 478, 482-84 (Idaho App. 2000); State  v.
Donesay, 959 P.2d 862, 871-72 (Kan. 1998) (based in part on state
law);  State  v. King, 708 A.2d 1014, 1017 (Me. 1998);  State  v.
Williams,  535  N.W.2d 277, 284-85 & n.3 (Minn. 1995)  (based  in
part on prior state law); In re Frederick C., 594 N.W.2d 294, 301-
02  (Neb.  App. 1999); People v. Cohen, 226 A.2d 903,  904  (N.Y.
App.  Div.  1996), revd on other grounds, 687 N.E.2d  1313  (N.Y.
1997); State v. Greybull, 579 N.W.2d 161, 163 (N.D. 1998);  State
v. Murphy, 747 N.E.2d 765, 779 (Ohio 2001); State v. Aleksey, 538
S.E.2d  248, 253 (S.C. 2000); Dowthitt v. State, 931 S.W.2d  244,
257  (Tex. Crim. App. 1996); State v. Bacon, 658 A.2d 54, 65 (Vt.
1995);  Midkiff v. Commonwealth, 462 S.E.2d 112, 116  (Va.  1995)
(applying state law); State v. Ross, 552 N.W.2d 428, 431-33 (Wis.
App.  1996).   See also 2 W.R. LaFave, et al, Criminal  Procedure
6.9(g), at 605-17 (1999).

     46   Hampel, 706 P.2d 1173, 1179 n.4.

     47   599 P.2d 1371 (Alaska 1979).

     48   See id. at 1378-79.

     49   See id.

     50   627 P.2d 211 (Alaska App. 1981).

     51   See id. at 217.

     52   See id.

     53   663 P.2d 975 (Alaska App. 1983).

     54   Id. at 977-78 (quoting Vail, 599 P.2d at 1378).

     55   See id. at 978.

     56                                           See         id.
                                                  (relying     on
                                                  Michigan     v.
                                                  Mosley,     423
                                                  U.S.   96,   96
                                                  S.Ct.  321,  46
                                                  L.Ed.2d     313
                                                  (1975) (holding
                                                  that        the
                                                  admissibility
                                                  of   statements
                                                  obtained  after
                                                  the  person  in
                                                  custody     has
                                                  decided      to
                                                  remain   silent
                                                  depends   under
                                                  Miranda      on
                                                  whether     the
                                                  persons   right
                                                  to    cut   off
                                                  questioning was
                                                  scrupulously
                                                  honored)).