Invocation of Rights
In general
• An assertion of Miranda rights must be clear and unequivocal, and in determining whether a person has asserted his or her rights, the defendant’s statements are considered as a whole.
Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004)(citing Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001), reh’g denied, reh’g en banc denied, cert. denied, 534 U.S. 924 (2001))
• [M]ere refusal to sign a waiver form does not in and of itself constitute an exercise of his Miranda rights.
Lee v. State, 531 N.E.2d 1165, 1167 (Ind. 1988)(citing Norris v. State, 498 N.E.2d 1203, 1204 (Ind. 1986))
Specifically invoking the right to remain silent
• “An assertion of the Miranda right to remain silent must be clear and unequivocal.”
Keller v. State, 987 N.E.2d 1099, 1111-12 (Ind. Ct. App. 2013), aff’d on reh’g, trans. denied(quoting Wilkes v. State, 917 N.E.2d 675, 682 (Ind. 2009), reh’g denied, cert. denied, 562 U.S. 981 (2010))
• The assertion of the right to remain silent “includes the statement . . . of a desire to remain silent until an attorney has been consulted.”
Willsey v. State, 698 N.E.2d 784, 791 (Ind. 1998), reh’g denied(quoting Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13 (1986))(alteration in the original)
• Although there are no particular words of legal magic to cut off questioning, a suspect must do more than express reluctance to talk in order to invoke his Fifth Amendment right to remain silent . . . .
Powell v. State, 898 N.E.2d 328, 337 (Ind. Ct. App. 2008), trans. denied(citing Haviland v. State, 677 N.E.2d 509, 514 (Ind. 1997), reh’g denied)
See Keller v. State, 987 N.E.2d 1099, 1112 (Ind. Ct. App. 2013), aff’d on reh’g, trans. denied(citing Wilkes v. State, 917 N.E.2d 675, 682 (Ind. 2009), reh’g denied, cert. denied, 562 U.S. 981 (2010))(“In determining whether a defendant has asserted this right, we consider the statements as [a] whole, and mere expressions of reluctance to talk do not invoke the right to remain silent.”)
See also Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004)(citing Taylor v. State, 689 N.E.2d 699, 705 (Ind. 1997))(“A person must do more than express reluctance to talk to invoke his right to remain silent.”)
• [R]aising doubts or expressing concern about continuing an interview followed by continued dialogue does not unambiguously assert the right to remain silent.
Keller v. State, 987 N.E.2d 1099, 1112 (Ind. Ct. App. 2013), aff’d on reh’g, trans. denied(citing Wilkes v. State, 917 N.E.2d 675, 682 (Ind. 2009), reh’g denied, cert. denied, 562 U.S. 981 (2010))
See, e.g., Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004)(citing Haviland v. State, 677 N.E.2d 509, 514 (Ind. 1997), reh’g denied)(“A statement that ‘I’m through with this,’ followed by continued dialogue without pausing or indicating that the defendant would no longer respond, did not unambiguously assert the right to remain silent.”)
• Even when an individual waives that right [to remain silent], the right may be invoked at any stage of the interrogation.
Vitek v. State, 750 N.E.2d 346, 350 (Ind. 2001), reh’g denied
Cf. Lane v. State, 364 N.E.2d 756, 758 (Ind. 1977), reh’g denied(“A corollary of an accused’s right to remain silent is his right to cut off questioning.”)
Specifically invoking the right to counsel
• An accused’s request for counsel must be unambiguous and unequivocal.
Bean v. State, 973 N.E.2d 35, 44 (Ind. Ct. App. 2012), trans. denied(citing Anderson v. State, 961 N.E.2d 19, 26 (Ind. Ct. App. 2012), trans. denied))
See Myers v. State, 27 N.E.3d 1069, 1079 (Ind. 2015), reh’g denied(quoting Taylor v. State, 689 N.E.2d 699, 703 (Ind. 1997))(“‘It is not enough that the defendant might be invoking his rights; the request must be unambiguous.’”)
• “Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.”
King v. State, 991 N.E.2d 612, 617 (Ind. Ct. App. 2013)(quoting Davis v. United States, 512 U.S. 452, 459 (1994))
Myers v. State, 27 N.E.3d 1069, 1079 (Ind. 2015), reh’g denied(quoting Taylor v. State, 689 N.E.2d 699, 703 (Ind. 1997))(alteration in the original)
Bean v. State, 973 N.E.2d 35, 44 (Ind. Ct. App. 2012), trans denied(citing Anderson v. State, 961 N.E.2d 19, 26 (Ind. Ct. App. 2012), trans. denied))
• Although a suspect need not invoke any magic words to assert his right to counsel, his request must be clear enough for a reasonable police officer to understand the statement as a request for an attorney.
Powell v. State, 898 N.E.2d 328, 336 (Ind. Ct. App. 2008), trans. denied(citing Jolley v. State, 684 N.E.2d 491, 492 (Ind.1997))
See Bean v. State, 973 N.E.2d 35, 44 (Ind. Ct. App. 2012), trans. denied(quoting Anderson v. State, 961 N.E.2d 19, 26 (Ind. Ct. App. 2012), trans. denied))(“The request must be made with sufficient clarity such that a ‘reasonable police officer under the circumstances would understand the statement as a request for an attorney.’”)
See also Powell v. State, 898 N.E.2d 328, 336 (Ind. Ct. App. 2008), trans. denied(citing Davis v. United States, 512 U.S. 452, 459 (1994))(“The level of clarity required to meet the reasonableness standard is sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”)
• “[T]he cessation of police questioning is not required ‘if a suspect makes a reference to an attorney that is ambiguous or equivocal . . . .’”
King v. State, 991 N.E.2d 612, 617 (Ind. Ct. App. 2013)(quoting Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010), reh’g denied(quoting Davis v. United States, 512 U.S. 452, 459 (1994)))
See Bean v. State, 973 N.E.2d 35, 44 (Ind. Ct. App. 2012), trans. denied(citing Anderson v. State, 961 N.E.2d 19, 26 (Ind. Ct. App. 2012), trans. denied))(“Cessation of police questioning is not required if a suspect’s reference to an attorney is ambiguous or equivocal, such that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.”)
See also Bean v. State, 913 N.E.2d 243, 250 (Ind. Ct. App. 2009), trans. denied(citing Cox v. State, 854 N.E.2d 1187, 1194 (Ind. Ct. App. 2006))(“In contrast, 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, cessation of questioning is not required.”)
• A statement is considered ambiguous or equivocal when “‘a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.’”
King v. State, 991 N.E.2d 612, 617 (Ind. Ct. App. 2013)(quoting Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010), reh’g denied(quoting Davis v. United States, 512 U.S. 452, 459 (1994)))
• When confronted with an ambiguous request for counsel, police are not required to ask clarifying questions.
Bean v. State, 913 N.E.2d 243, 250-51 (Ind. Ct. App. 2009), trans. denied(citing Smith v. State, 718 N.E.2d 794, 804 (Ind. Ct. App. 1999), trans. denied, abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1207 n. 10 (Ind. 2007))
Cf. Taylor v. State, 689 N.E.2d 699, 704 (Ind. 1997)(“Nothing precludes police from attempting to clarify ambiguous statements about invoking the right to counsel, but § 13 [of the Indiana Bill of Rights] does not require that effort.”)
Analyses of potential invocations of the right to counsel
• [The defendant’s] question of whether it was “best advised” to speak with a lawyer does not signify that he wanted counsel. Instead, he merely solicited an opinion as to whether he should get one.
Malloch v. State, 980 N.E.2d 887, 901 (Ind. Ct. App. 2012), trans. denied
• The questions “Do I need a lawyer for something?” “Do I need an attorney?” and “What about an attorney?” are not unequivocal requests for counsel.
See Bean v. State, 913 N.E.2d 243, 251 (Ind. Ct. App. 2009), trans. denied
• [W]e found the invocation of the right to counsel unequivocal where the defendant said, “I really would like to talk to an attorney or something”. . . . [The defendant’s] statement in the case before us was equally unequivocal: [The defendant] said, “I want a lawyer so that way, you know, I don’t have to worry about—you know—saying I don’t know for the fifty-millionth time.” Questioning should have ceased at this point.
Bean v. State, 973 N.E.2d 35, 44 (Ind. Ct. App. 2012), trans. denied(citations omitted)
• The defendant analogizes his situation to those found in Sleek v. State, 499 N.E.2d 751 (Ind. 1986), and Smith v. Illinois, 469 U.S. 91 (1984). Unlike this case, however, in both Sleek and Smith, the defendants made a clear request for counsel. In Sleek, the defendant was advised orally of his Miranda rights. He responded that “well, [I] feel like I ought to have an attorney around.” . . . In Smith, the defendant was informed, “you have a right to consult with a lawyer and to have a lawyer present with you when you are being questioned. Do you understand that?” The defendant responded, “uh, yeah. I’d like to do that.” . . . [T]he defendant’s statement, “yeah, I’d like to do that,” represented a clear and unequivocal request for counsel.
Bane v. State, 587 N.E.2d 97, 103 (Ind. 1992), reh’g denied(some citation omitted)
• [W]e can find no clear and unequivocal request for an attorney. At several points, [the defendant] suggests that he would like to have a lawyer eventually, but in the meantime is willing to give a statement to the police.
Bane v. State, 587 N.E.2d 97, 103 (Ind. 1992), reh’g denied(emphasis added)
• [The defendant’s mother] provided the only testimony recounting [the defendant’s] invocation of his rights, and she seemed unsure whether [the defendant] requested an attorney or whether she asked him if he wanted an attorney. [The defendant’s mother] also testified that [the defendant] wanted an attorney so he could sue the police for shooting at him, and not for the purposes of defending him against possible criminal charges. As such, [the defendant’s] statements do not appear to have unambiguously or unequivocally invoked his right to counsel.
Myers v. State, 27 N.E.3d 1069, 1079 (Ind. 2015), reh’g denied(emphasis added)(footnote omitted)