This

# opinionwasfiled

# for'record at 

### $:oo om on 

### Mo::r**~.** 201

### '-l

## ~,,,~~

# ~~~~ R,

# carpenie~ ,
,**~uprame** Court Clerk 

### INTHE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 87904-4 ) Respondent, ) ) v. ) EnBanc ) SAMUELM. PIATNITSKY, ) 

## MAY 082014 ) Filed Petitioner. ) GONZALEZ, J.-We are asked todayto decide whether Samuel Piatnitsky unequivocally invokedhis rightto remain silent whenhe told police investigating a murder that,"I don'twantto talkrightnow" butthathewould "write it down." We find thatthis is, at best, an equivocal invocation oftherightto remain silent, and thus, the trialjudge did not err in admitting Piatnitsky's written confession. We affirm. FACTS Inthe earlyhours ofOctober 19, 2008, SamuelPiatnitsky and his friend Jason Young were askedto leave a party. Theyrefused. A fight broke out, and eventually Piatnitsky andYoung left. But, approximately 30 minutes later, theyreturned with Piatnitsky brandishing a shotgun. Announcinghis return to thepartygoers, PiatnitskyState v. Piatnitsky, No. 87904-4 

### exclaimed somethingto the effect of'"what'sup now,"' chambered around, and fired

a shot. Clerk's Papers at 3. Shawn Jones, the victim inthe case, grabbed the shotgun and began wrestling withPiatnitsky. Young pulled Jones offPiatnitsky, who then fired three more shots, killing Jones and injuring anotherperson. King County Sheriffs deputies were dispatched to the scene around 3:30 inthe morning. A K-9 unit followed atrack from the crime scene to Young'shouse. Young
came out when summonedbythe officers; Piatnitsky was found hiding inthe basement ofthehouse. Officers Mirandized Piatnitsky, and he confessed to shooting Jones and another partygoer. Witnesses broughtto the scene ofthe arrest identified Piatnitsky as the shooter. He was taken into custody and booked. Laterthat morning, Detectives Keller and Allen interviewedPiatnitsky about the shooting. After about an hour ofquestioning during whichPiatnitsky indicatedhe
was willing to give ataped confession, the detectives turned on atape recorder. The relevantportion ofthe taped interview went as follows: DET:

SUS: DET: SUS: DET: SUS: Okay, and earlieryou were advised ofyourMirandarights. Do youremember that, your Constitutional rights bythe officer, do youremember that? Yeah; I have aright
... Didyouunderstandthose? I have arightto remain silent. Right. I'm gonna go ahead and
... That's the, that's the only one I remember. 2State v. Piatnitsky, No. 87904-4



### DET: SUS: DET:

SUS: DET:
DET2: SUS: DET2:
SUS:
DET: SUS: Okay. I'mgonnaread 'emfor you again. That'sthe one I, I should be doing rightnow. Well, youknow, like we told you, you don'thave to talk to us. Okay. You've already admitted to this thing. We wantto go on tape, and because it's an importantpart ofthis, and we talked aboutthat, and that'sthe part whenyou go backto getthe shotgun. Before we do any ofthat, I want to read you... What are you guys talking about, man? I wantto read youyour rights, okay. Do you understand thatyou have the rightto remain silent? You gotta answer out loud, SAM. I'mnot ready to do this, man. Youjusttold us thatyouwanted to get it in your ownwords on tape. You asked us to turnthe tape on; remember? Ijustwrite it down, man. I can'tdo this. I, I, Ijustwrite, man. I don't, I don'twant. .. Okay. I don'twantto talk right now, man. Pretrial Ex. 3, at 1-2 (alterations in original). The detectives Mirandized Piatnitsky again, and he signed a waiver form. During the recording, the detectives clarified their understanding ofthe situation: DET2:
SUS: Areyou sure you don'twantto do it ontape like you saidyou did; youwantto get in your own words? Yes, sir.

3State v. Piatnitsky, No. 87904-4 

### DET2: DET: SUS: Okay. So you'drather take a written statement, do a written one. Yes. I don'tknow (unintelligible)[.] DET: Okay, it's too hard to talk about; you'drather write it. 

### Id. at4. Both detectives testified thatthe unintelligible portion ofthe recording was Piatnitsky stating once again that he did not wantto make an audio recorded confession. The detectives complied withthat request and stoppedrecording. Instead, one ofthe detectives wrote downPiatnitsky's version ofthe events, which Piatnitksy edited. At some point, Piatnitsky did not like where the questioning was going and he told detectives he was finished and cut offthe interview. The detectives stopped asking questions and finished the statement. Piatnitskythenreviewed everything thathadbeenwritten, requested some changes, and signed the corrected statement. Ultimately, Piatnitsky was charged withmurder inthe first degree, among other things. Beforethe trial, he challengedthe admissibility ofhis written statementto the police, arguing that he did not waive his rightto remain silentknowingly and voluntarily. Thetrialjudge conducted a CrR 3.5 hearing and found that all of Piatnitsky's statements, written and oral, were admissible becausePiatnitsky was able to knowingly, voluntarily, and intelligently waive his rights despite his emotional and physical state at the time ofinterrogation. Piatnitsky was convicted ofmurder in the first degree, attempted murder in the first degree, possessing a stolen firearm, and 4State v. Piatnitsky, No. 87904-4 

### unlawful possession ofa firearm in the second degree. Thetrial court imposed a standard-range sentence of600 months. Piatnitsky appealed, arguing, among other things, thatthe trial court should have suppressed his statements because he had successfully invokedhis right to silence. State v. Piatnitsky, 170 Wn. App. 195, 210- 11,282P.3d 1184 (2012). The Court ofAppeals affirmed the trial court in a splitpanel decision. We grantedreview onthe suppression issue alone and now affirm. State v. Piatnitsky, 176 Wn.2d 1022, 299 P.3d 1171 (2013). ANALYSIS Piatnitsky argues that his statements must be suppressedbecause he unequivocally invoked his FifthAmendment1

### rightto silence. See Pet'r's Combined Suppl. Br. at 10. We disagree. His statement, when examined in context, was at best

an equivocal invocation ofthat right. While the phrase "Idon'twant to talkright now, man" could be an unequivocal invocation ofthe rightto silence, it was not uttered in isolation. The contexthere shows equivocation by Piatnitsky. He did not just say "I don'twant to talkright now, man"; he said, "Ijustwrite it down, man. I can'tdo this. I, I, Ijustwrite, man. I don't, I don'twant. .. I don'twant to talk right now, man." PretrialEx. 3, at 2. To be unequivocal, an invocation ofMiranda2

### requires the expression ofan objective intentto cease communicationwith interrogating officers. Piatnitsky did not

1U.S. CONST. amend. V. 2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 5State v. Piatnitsky, No. 87904-4 

### express such an intent. Instead, as the detectives reasonably understood, he saidhe wouldratherwrite thantalk. Because

### Miranda rights cannotbe partially invoked and mustbe exercised in an objectively clear way, we affirm the lower courts.3 

### Priorto any custodial interrogation, a suspect mustbe informed that "hehas the right to remain silent, that anything he says canbe used against him in a court oflaw, thathe has the rightto the presence ofan attorney, and that ifhe cannot afford an attorney one will be appointed for himpriorto any questioning." 

### Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. 

### Ed. 2d 694 (1966). Any waiver ofthese rights bythe suspect mustbe knowing, voluntary, and intelligent. 

### State v. Radcliffe, 164 Wn.2d 900, 905-06, 194 P.3d 250 (2008) (citing

### Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. 

### Ed. 2d 378 (1981)). Even once waived, a suspect can invoke these rights at any point during the interview and the interrogation must cease. 

### !d. at 906 (citing

### Edwards, 451 U.S. at 484-85). Here, we are askedwhether Piatnitskyunequivocally invoked his rightto silence before the detectives tookhis written statement. We find thatbecausethe detectives reasonably concludedthat Piatnitsky was expressing apreference for a

3 In the alternative, Piatnitsky argues that evenifhis invocation ofthe right to silence was equivocal, article I, section 9 ofour state constitution limits law enforcementto clarifying questions when such an invocation is made. See Pet'r's Combined Suppl. Br. at 20, 30. Piatnitsky did notraise this argument at trial, atthe Court ofAppeals, or inhis petition for discretionaryreview. We decline to reach it. See RAP 13.7(b); State v. Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250 (2008). 

### 6State v. Piatnitsky, No. 87904-4 

### written ratherthan an audio-recorded statement, any invocation ofhis Miranda rights
was equivocal at best. As we stated inRadcliffe, "theUnited States Supreme Courthas decided the [equivocal invocation ofMiranda] issue and we must follow its holding as it applies to theFifthAmendment. Davis [v. UnitedStates, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994),] is the law under the federal constitution." 164 Wn.2d at 907. Onthe similar issue before us, we maintain thatDavis controls our analysis. ThoughbothRadcliffe andDavis dealt withthe invocation ofthe rightto counsel, we draw no distinctions betweenthe invocations ofdifferentMiranda rights. We have been instructed that "there is no principled reasonto adopt different standards for determining when an accused has invoked theMiranda right to remain silent andtheMiranda rightto counsel." Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). Here, we faithfully adhere to this instruction and apply the rules articulated inDavis andRadcliffe to an alleged invocation ofthe rightto silence. It

### is well establishedthatMiranda rights mustbe invoked unambiguously. Davis, 512 U.S. at 459; Radcliffe, 164 Wn.2d at 906. This is abright-line inquiry; a statement either is '"an assertion of[Miranda rights] or it is not."' Davis, 512 U.S. at 459 (quoting Smith v. Illinois, 469 U.S. 91, 97-98, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984)). Also, this inquiry is objective. 

### !d. In other words, an invocation mustbe sufficiently clear "that areasonable police officer inthe circumstances would 7State v. Piatnitsky, No. 87904-4 

### understand the statementto be [an invocation ofMiranda 

### rights]." Id. 

### And so, that is the question before us here. As a matter oflaw, was it reasonable for the detectives to conclude thatthe rightto silence was not invoked? Looking at the context, the detectives interrogating Piatnitsky couldreasonably conclude thathe never actually invoked his rightto silence. Inresponse to a question aboutwhether he understood his Miranda 

### rights, Piatnitsky said, "Ihave aright to remain silent.
...That'sthe, That'sthe only one I remember.
...That's the one I, I shouldbe doing right now." Pretrial Ex. 3, at 2. Piatnitskyhimselfadmits thathe shouldhave 

### been exercisinghis rightto silence, which, whenproperlyunderstood,

means that he was not actually doing so. Immediately after this interaction, one ofthe detectives explainedthat he wanted to get arecording ofPiatnitsky's confessionbut that he first wanted to go throughMiranda 

### once again. To this, Piatnitskyresponded, "I'mnot ready to do this, man." ld. 

### The detective asked for a clarification because earlier Piatnitskyhad indicated willingness to confess on audio recording.4 

### Piatnitsky obliged, saying, "Ijustwrite it down, man. I can'tdo this. I, I, Ijustwrite, man. I don't, I don'twant ...I don'twantto talkrightnow, man." I

### d. 

### The detective agreed and told Piatnitsky, "Okay, but let's go overthe rights on tape, and thenyou can write it down, okay." ld. 

### Piatnitsky confirmedthe detective's understanding ofthe statementby saying, "Allright, man." I

### d. 

### Thus, whenPiatnitsky said, "I don'twant

4 Specifically, the detective said, "Youjusttold us that you wantedto get it in your ownwords on tape. You asked us to turn the tape on, remember?" Pretrial Ex. 3, at 2. 8State v. Piatnitsky, No. 87904-4


### to talkright now, man," his invocation ofMiranda 

### was equivocal at best. Id. 

### The detective reasonably concluded thatPiatnitsky was expressing apreference for the

means ofcommunication. The undisputedrecord shows that Piatnitskyunderstoodhe had arightto silence that he was not exercising. And when Piatnitsky expressed somehesitation aboutthe questioning, the record indicates thatthe interrogating detective clarified Piatnitsky's desire and received confirmationthatthe hesitationwas aboutmaking an audio-recorded statement. The detectives reasonably concludedthatPiatnitsky's statements were apreference for awritten statement over a recorded one. The reasonableness ofthis conclusion is supportedby audio recording, transcript, and testimony. It

### is well establishedthatwhen an accused makes a statement concerningthe rightto remain silent '"thatis ambiguous or equivocal' or makes no statement, the police are not requiredto end the interrogation or ask questions to clarify whether the accused wants to invoke his or her Miranda 

### rights." Berghius, 

### 560 U.S. at 381 (citation omitted) (quotingDavis, 

### 512 U.S. at 461-62). Piatnitsky's statementwas at least ambiguous or equivocal, and so the interrogating detectives were notrequired to end the interrogation. As inBerghius, 

### we find thatthe "[s]uppression ofa voluntary confession in these circumstances would place a significantburden on society's interest inprosecuting criminal activity." 

### ld. at 382.

9State v. Piatnitsky, No. 87904-4



### CONCLUSION Piatnitsky did notunequivocally invoke his rightto remain silent. It

### was reasonable for the detectives to interpretPiatnitsky's statements as an expression of preference for making a written confessionrather than an audio recorded one. Piatnitsky's statementwas a conditional invocation of

### Miranda. Under

### Radcliffe, such an invocation must be viewed as equivocal or ambiguous. 164 Wn.2d at 907. Under

### Berghuis, such an invocation does not require law enforcementto ask for clarification or suspend questioning. 560 U.S. at 381. We find the statements were properly admitted at trial and affirm.

10State v. Piatnitsky, No. 87904-4



### WE CONCUR:

11State v. Piatnitsky (Samuel M.) No. 87904-4 (Wiggins, J., dissenting)

No. 87904-4
WIGGINS, 

### J. (dissenting)-Has a suspect unequivocally invoked his right to remain silent when he tells police "I don't want to talk right now"? The majority answers this question in the negative, and I respectfully dissent. We should hold that Samuel Piatnitsky unequivocally invoked his right to remain silentwhen he said those very words during a police interrogation. While he qualified his invocation of rights with his assent to "write it down," he was not allowed to write anything down. Rather, the police continued their interrogation. Although the police wrote down a statement in the process and Piatnitsky signed the statement, these subsequent facts do not make equivocal his earlier statementthat "I don'twantto talk right now." The majority opinion whittles away the right to be free from self-incrimination and ignores the inherently coercive nature of custodial interrogation. 

### A An invocation ofMiranda rights mustbe unequivocalin context As the Supreme Court recognized in Miranda, the pressures inherent to custodial interrogations naturally tend to push suspects to talk to the police, encouraging them to waive their constitutional privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 457-58, 86 S. Ct. 1602, 16 

### L. Ed. 2d 694 (1966). As a means of assuring that a suspect's choice to talk to the police is made freely, Miranda requires the police to inform suspects oftheir right to remain silent and theirNo. 87904-4 (Wiggins, J., dissenting) right to the presence ofan attorney. 

### /d. at 479. A suspect may choose to invoke these rights at any time prior to or during questioning. 1

### /d. at 472-73. A suspect's invocation of Miranda rights may be equivocal or unequivocal. If the suspect's invocation is equivocal, then officers may carry on questioning. Davis

### v. United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 129 

### L. Ed. 2d (1994). They are not required to cease the interrogation or clarify whether or not the suspect actually meantto invoke Miranda. /d. However, ifthe invocation is unequivocal, the police must stop their questioning immediately. They may not resume discussion with the suspect until the suspect himself or herself reinitiates further communication with the police or counsel is made available to the suspect. Edwards 

### v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981 ). An invocation of Miranda rights is unequivocal so long as a "reasonable police officer in the circumstances" would understand it to be an assertion of the suspect's rights. Davis, 512 U.S. at 459. This test encompasses both the plain language and the context of the suspect's purported invocation. Therefore, when a suspect says ·"'Maybe Ishould talkto a lawyer"' and subsequently clarifies that "['][n]o, I'm notasking for a lawyer,"' the suspect has not invoked his Miranda rights and questioning may continue. 

### /d. at 455 (first alteration in original). On the other hand, when a police officer tells a suspect about his right to have a lawyer present and the suspect says, "'Uh,

1 The Supreme Court has subsequently held that an invocation of the right to remain silent and an invocation of the right to counsel are treated the same way. An invocation of either right is sufficient to terminate an interrogation. Berghuis v. Thompkins, 560 U.S. 370, 376, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (201 0) (citing Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)). Accordingly, we read the cases regarding a suspect's right to remain silent and a suspect's right to counsel together. 2No. 87904-4 (Wiggins, J., dissenting) yeah, I'd like to do that,"' the suspect has unequivocally invoked Miranda rights and the officer must stop the questioning immediately. Smith v. Illinois, 469 U.S. 91, 93, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). The Supreme Court has additionally created a third category of invocationsthat are unequivocal but limited in scope. In Connecticut

### v. Barrett, 479 U.S. 523, 525, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), the defendant refused to give a written statement without an attorney present buttold the police that '"he had no problem in talking about the incident"' and proceeded to give an inculpatory oral statement. The Supreme Court held that in light ofthe "tenor or sense of a defendant's responses to [Miranda] warnings," the defendant had not unequivocally invoked his right to remain silent. 

### /d. at 528. The Court noted that "Barrett's limited requests for counsel

... were accompanied by affirmative announcements of his willingness to speak with the authorities." /d. at 529 (emphasis added). That is, Barrett's invocation of his right not to give a written statementwas clear. But it did not equate to an invocation of his right not to talk because he explicitly said he had "'no problem"' doing so. /d. at 525. Thus, when Barrett proceeded to talk, evidence of his oral statement was admissible. The Supreme Court has also limited the context a court may consider in determining whether the invocation ofthe right to remain silent was unequivocal. We may not rely on statements made afterthe suspect's purported invocation in order to retroactively cast doubt on a facially clear and unequivocal invocation of Miranda rights. Smith, 469 U.S. at 99. In Smith, the defendantwas advised of his right to have counsel present and told the police, "'Uh, yeah, I'd like to do that."' 469 U.S. at 93. Rather than cutting off discussion, the police proceeded to finish reading Smith his 3No. 87904-4 (Wiggins, J., dissenting) Miranda rights and asked him, '"Do you wish to talk to me at this time without a lawyer being present?"' and Smith answered, '"Yeah and no, uh, I don't know what's what, really."' 

### /d. The trial court seized on Smith's latter statement as proof that Smith's invocation of Miranda had been equivocal and admitted evidence of Smith's statements to police. The Supreme Court disagreed, holding that "[w]here nothing about the request or the circumstances leading up to the request would render it ambiguous, all questioning must cease." 

### /d. at 98 (emphasis added). In other words, what the accused said after invoking his Miranda rights might be relevant to waiver but it was not relevant to the invocation itself. 

### /d. Smith's statementthat "I'd like to [get a lawyer]" was not ambiguous on its face, and did not become so because he later said, "I don't know what's what." 

### /d. at 93. Pursuant to Supreme Court precedent, I now analyze Piatnitsky's statements, and the context leading up to his statements, to determine whether his invocation of Miranda was unequivocal and, if so, what scope it covered. B. Piatnitsky unequivocallyinvoked his right to remain silent The majority concludes that Piatnitsky equivocally invoked his Miranda rights when he said, "'I don't want to talk right now, man."' Majority at 8 (quoting Pretrial Ex. 3, at 2). I disagree. The context leading up to Piatnitsky's statement indicates that his statementwas unequivocal, albeit limited. The detectives did not abide by Piatnitsky's clear refusal to talk, and the statement they prepared for him should not have been admitted. Piatnitsky told the detectives, "I don't want to talk right now." On its face, there is nothing equivocal or ambiguous about this statement: he did not use equivocal 4No. 87904-4 (Wiggins, J., dissenting) words like "maybe" or conditional words like "if." A statement that the suspect "want[s] to remain silent or that he [does] not want to talk with the police" is a "simple, unambiguous statement[]" that cuts off questioning. Berghuis 

### v. Thompkins, 560 U.S. 370, 382, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (201 0). Piatnitsky made just such a refusal. It is difficult to ask a suspect to phrase a refusal any more clearly than "I don't wantto talk"-particularly a suspect who was deprived of sleep and who had recently suffered a head injury. The trial court found at the CrR 3.5 hearing that Piatnitsky was willing to talk to the police, albeit not on tape. In affirming, the court of appeals relied on three contextual points: first, that Piatnitsky talked with the detectives prior to the audiorecorded interview; second, that Piatnitsky "participated fully" in Detective Allen's preparation of the written statement; and third, that Piatnitsky said he was willing to "'write it down."' State v. Piatnitsky, 170 Wn. App. 195, 222-24, 282 P.3d 1184 (2012). The first contextual clue, that Piatnitsky was willing to talk with the detectives prior to the audio-recorded statement, is unavailing because a suspect may invoke his Miranda rights at anytime. Miranda, 384 U.S. at 473-74. A suspect may talk with the police and then decide to stop talking with them for any or no reason. If a facially clear refusal to talk could be vitiated by the suspect's priorassent to talk to police, then the Miranda right to halt questioning at any time would be nullified. Next, the decision of the Supreme Court in Smith precludes the second contextual clue on which the appellate court relied that: Piatnitsky talked with the detectives afterhis invocation of Miranda. In Smith, the police continued to question the suspect after he was informed of his right to talk to a lawyer and said "'Uh, yeah, 5No. 87904-4 (Wiggins, J., dissenting) I'd like to do that."' 469 U.S. at 93. The Supreme Court held that further questioning after that point was impermissible, even though the suspect eventually agreed to talk to the police. 

### /d. at 97-98. The Smith rule is simple: once the suspect unequivocally invokes his Miranda rights, the police may not continue questioning, not even to ask if the suspect is sure he wants to invoke Miranda. The police here violated this rule, and the fact that Piatnitsky participated in the preparation of the written statement and signed off on it is no more relevant than the fact that the suspect in Smith eventually agreed to talk to the police. The third contextual clue is more relevant; it is true, as the Court ofAppeals points out, that Piatnitsky qualified his refusal. Immediately prior to saying, "I don't want to talk

... ," Piatnitsky stated that "I just write it down

...." Pretrial Ex. 3, at 2. Barrett addressed the situation where a suspect agreed to talk while refusing to provide a written statement. This case presents the converse: the suspect agreed to write but refused to talk. Thus, as Piatnitsky's counsel conceded at oral argument, there would be no Miranda issue if the police indeed had ceased their oral conversation with Piatnitsky and had abided by his request to "write it down." But the police did notabide by Piatnitsky's request. They did not give Piatnitsky pen and paper but finished reading him his Miranda rights and then carried on questioning him. As Detective Keller testified at trial: Q When you went off tape, did you and Detective Allen proceed to do an interview with the Defendant, just not record it? A Yes, that's correct.

6No. 87904-4 (Wiggins, J., dissenting) Q What was your role during this interview? A Well, Iwas taking notes and assisting with questioning. Q Did both you and Detective Allen take notes contemporaneously, or was one of you writing the actual statement while one of you was asking questions? How did that work? A I asked questions. We both asked questions, and it was kind of a mutual questioning. DetectiveAllen wrote down the actual, what Mr. Piatnitsky wanted on the statement. Report of Proceedings (RP) (Sept. 16 and 20, 201 0) at 23-24. In other words, the police resumed their questioning, with the only difference being that Detective Allen was writing down Piatnitsky's answers. As the court of appeals correctly notes, the Supreme Court held in Barrett that where a suspect expresses a clear intention to communicate with the police through one medium and not another, the police may respect the suspect's choice without running afoul of Miranda. 479 U.S. at 529. And the court of appeals' reliance on Barrett would be proper if the police had indeed respected Piatnitsky's choice of medium. They did not; they continued to talk to him after he said he did not want to talk. Piatnitsky's invocation of his Miranda rights was clear and unequivocal as to talking, and yet the police persisted in talking to Piatnitsky. The majority ignores this fact and, instead, gives too much deference to police interrogators at the expense of protecting defendants' rights. The trial court should not have admitted Piatnitsky's statements, and this error was not harmless. While the State presented substantial evidence aside from Piatnitsky's confession to rebut Piatnitsky's theory of self-defense, that evidence was 7No. 87904-4 (Wiggins, J., dissenting) not so overwhelming as to require ajury to reject Piatnitsky's theory and convict him. Iwould require a new trial. CONCLUSION Piatnitsky's statement that "I don't want to talk right now, man" was a limited refusal, in the context of his affirmative statement that he would "write it down." Nevertheless, the police did not comply with even this limited refusal. Piatnitsky was not, in fact, allowed to write down his own statement. Rather, the police persisted in talking to Piatnitsky. The fact that they may have done so in furtherance of "writing it down" for him does not excuse their failure to respect Piatnitsky's invocation of Miranda. The trial court incorrectly admitted Piatnitsky's written statement, and the errorwas not harmless.

8No. 87904-4 (Wiggins, J., dissenting) I respectfully dissent.

9