### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JANUARY 2000 SESSION

STATE OF TENNESSEE v. WILLIAM M. HUKOWICZ

Appeal as of Right from the Criminal Court for Wilson County

No. 98-949, 98-949 A.B J.O. Bond, Judge

No. M1999-00073-CCA-R9-CD - Filed August 18, 2000

Following a suppression hearing, the Wilson County Criminal Court, J.O. Bond, J., ordered certain portions of the defendant’s statement given to police suppressed, holding that the d efendant had exercisedhis right to remai n silent. The state filed an interlocutory appeal. The Court holds that the evidence does not preponde rate against

the trial court’s finding that the defendant’s refusal to answer other questions by stating “no c om ment” or a similar declaration was a proper assertion of the defendant’s right to remain si lent. However, th

e trial c ourt shoul d have suppressed the entire statement given

following the de

fendant’s asser

tion of his right to r

emain silent. Remanded.

T.R.A.P. 9 Appeal as of Right; Judg ment of the Crim

inal Court of Wilson Count y is Remanded

J ERRY L. S MITH , J., delivered the op inion of th e court, in which THOMAS T. W OODALL , J., a nd L. T ERRY L AFFERTY , S.J., joined.

Frank L annom, L ebanon, T ennessee attorney for the ap

pellee, Wi

lliam M. Hu

kowicz.

Paul G. Summers, Attorney General & Reporter, L ucian D. Geise, Assistant Attorney General and Tom P. Thompson, Jr., District Att orn ey Gen eral and Rob ert Hib bet t, A ssi sta nt D ist ric t At tor ney, attorneys for the appellant, State of Tennessee

OPINION

FACTUAL BACKGROUND

On May 6, 1998, William Hukowicz surrendered to Mt. Juliet Police after learningthat he

was under suspicion for rape, assault and kidnapping. After signing a waiver of his Miranda

rights, the defendant g

ave a taped state

ment to authorities . The statement be gan as follows: Detective: It’s hard to remember everything that y ou tell me if I am

not recording it

. I simply cannot . . .

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Hukowicz: Remember

it all Detective: Take

note of it. Hukowicz: That’s true. Detective: But, you we

re at home o n Friday, the 24 th day. Whi ch w as o n a Fr ida y. You were at y

our house which is h

ere in Mt. Juliet? Hukowicz: Correc

t. Detective: Which is at 11459 Lebanon Road. Okay. At ab out 7:00 p.m. did Emily Parker come by your house? Hukowicz: She did. Detective: Okay, tell me about what happened. Hukowicz: I ca

nnot comment on that

. Detective: You c

annot comment? Hukowicz: I’d rather not right now. Detective: Alrig

ht. Hukowicz: I really do want to tell y ou, but I just know better. Following that dialogue, the detec tive continued asking the defendant questions. The defendant answered some questions and refused to answer others. When the defendant refused to answer, he said “no comment,” or made a similar statement. The defendant th en indicated that

he desired to speak with an attorney, and the detective terminated the interview. Before trial, the defendant moved to suppress the s tatement. Following a suppression hearing, the trial court redacted those portions of the defendant’s statement in which the defendant refused to answer

questions, holding

that the defenda

nt was “exercising

his constitutional r

ight to remain silent.” On appeal the Stat e argues that th e defendant did n

ot properly

invoke his right to silence when he a

nswered some que

stions but not others

.
MOTION TO SUPPRESS

“That a defendant has a constitutional right to remain silent in the face of accusations ag

ainst him, not only

during his

trial but also upon arrest and while in custody, is a rule so fundamental as to require little elaboration.” Braden v. State , 534 S.W.2d 657, 660 (Tenn. 1976)(citations omitted). “While it is true thatthe Miranda warnings contain no express assurance that silence will carry no pen alt y, such assurance is implicit to any person who receives the warnings.” Doyle v. United States
, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L. Ed. 2d 91 (1976). Thus, th

e United States Supr

eme Courthas held that “it is i

mpermissible to pen

alize an individual f

or exercising his

Fifth Amendment privilege when he is under police cu stodial interrog

ation. The prosec

ution may not,

therefore, use at trial the fact tha

t [th e suspect] stood mute or claimed his privilege in the face of accusation.” Miranda , 384 U.S. at 468 n.37. However, it is not as clear ho w expressly a

n accused must invo

ke his right to re

main silent, especially after he has signed a waiver of that right. In a similar case, the U n ited States Supreme Courtheld that, in order for an accuse

d t o invoke his Fifth Amendment right to counsel, that invocation must be clear and unequivocal. Davis v. United States , 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) . This “cl ear articulatio n rule” mandates

that when a suspec

t clearly requests an attorney, no further questioning may occur until an attorney has been made available or

### -3-

the suspect reinitiates the conversation. Id. at 458. However, if the suspect’s request for an attorney is ambiguous, th

en police may continue the questioning. Id. at 461-62. In order to determine whether the suspect has clearly articulated his desire to consult with an attorney, the Supreme Court employed the objective sta

ndard of whether

a reaso na ble police officer under the circumstances would know that the suspect wanted to cease questioning. Id. at 458. Most lower courts have adopted this analysis in the context of the rig

ht to remain silent a

s well, i. e ., before the polic

e must scrupulously

honor a suspect’ s right to remain s ilent, the suspect

must clearly articulate that r

ight so that a reasonable po lice officer un

der the circumsta

nces would understandthe suspect’s words and conduct to mean that the suspect wants to e

xercise his

right to cut off further questioning. See Bowen v. State , 911 S.W.2d 555, 565 (Ark. 1995), cert. denied , 517 U.S. 1226, 116 S. Ct. 1861, 134 L. Ed. 2d 960 (1996); Peo ple v. A rro ya , 988 P.2d 1124, 1128 (Colo. 1999); State v. Owen
, 696 So. 2d 715, 717-1 8 (Fla.1997); State v. Donesay , 959 P.2d 862, 871-72 (Kan. 1998); State v. King , 708 A.2d 1014, 1017 (Me. 1998); State v. Williams , 535 N.W.2d 277, 285 (Minn. 1995); In re Frede rick C.
, 594 N.W.2d 294, 302 (Neb. 1999); State v. Grey bull , 579 N.W.2d 161, 163 (N.D. 1998 ); Sta te v. Reed
, 503 S.E.2d 747, 750 (S.C. 1998), cert. denied , 525 U.S. 1150, 119 S. Ct. 1051, 143 L. Ed. 2d 57 ( 1999); Dowthitt v. State , 931 S.W.2d

244, 257 (T

ex. Crim. App. 1996); State v. Bacon, 658 A.2d 54, 65 (Vt. 1995), cert. denied , 516 U.S. 837, 116 S.Ct. 117, 133 L.Ed.2d 67 (1995); State v. Ross , 552 N.W.2d 428, 429- 30 (Wis. App.1996). The majority of federal jurisdictions considering the issue have applied the Davis rationale to the r ight to remain silentas well. See
, e.g. , Bui v. DiPaolo
, 170 F.3d 232, 239 (1st Cir. 1999); United States v. Ramirez
, 79 F.3d 298, 305 (2d Cir. 1996), cert. denied , 519 U.S. 850, 117 S. Ct. 140, 136 L. Ed. 2d 87 (1996); United States v. Mills , 122 F.3d 3 46, 350-51 (7th Cir. 1 997) (citi ng United States v. Banks
, 78 F.3d 1190, 1196-97 (7th Cir. 1996)), cert

. denied , 522 U .S. 1033, 118 S. Ct. 637, 139 L. Ed. 2d 615 (1997); United States v. Johnson , 56 F.3d 947, 955 (8th Cir. 1995); Medina v. Singletary
, 59 F.3d 1095, 1100-01 (11th Cir. 1995), cert. den ied , 517 U.S. 1247, 116 S. Ct. 2505, 135 L. Ed. 2d 195,(1996); See also United States v. Hicks , 967 F. Supp. 2 42, 250 (E.D. Mich. 1997); United States v. Andrade , 925 F. Supp. 71, 79-80 (D. Mass. 1996); United States v. Sanchez , 866 F. Supp. 1542, 1558-59 (D. Kan. 1994). In this case, although the defendant did not stand mute or asse rt that he did not wa nt to

answer any questions, we find ample evidence to support the trial court’s finding that the defendant invoked his right to remain silent. When askeda question about the night in question, the defendant told the detective that he could not comment, and that although h e wanted to comment, he “knew better.” In our opinion, a reasonable police officer under the circumstance s should have known that the defendan t was invok ing his righ t to termin ate questi oning. Although we do not disturb t he tria l court’s finding that the defendant’s refusal to answer questions was an invocation of his right to remain silent, we find the court’s redaction of the statement to be an inadequa

te remedy.

To fully hono

r an accused' s self

-incrimina tion rights, the Miranda Court stated that

"[o]nce war nings have been given, ... [i]f the individual indicates in any
manner, at any

time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At that point, he has shown that he intends to exercise his Fifth Amendment privilege." Miranda
, 384 U.S. at 473-74. F urthermore, “th

e admissi bili ty of statements obtained after the person in custody has decided

to remain silent depends under Miranda on whether his 'right to cut off questioni ng' was 'scrupul ously honored .' " Michigan v. Mosley , 423 U.S. 96, 104, 96 S. Ct. 321,

### -4-

46 L. Ed. 2d 313 ( 1975); State v. Cameron , 909 S.W.2d 836, 845 (Tenn. Crim. App. 1995). In this case, after the defendan t invoked his right t

o remain silent, the

police immediatel

y continued to question him. It is clear that the police did not “scrupulously honor” his invocation of his right to remain si

lent. “Once an in

dividual invokes his

right to remain silent an

d the police fail to honor that invocation by continuing to interrogate hi m, that v iolation, by definition, is of constitutional magnitude.” State v. Crump , 834 S.W.2d 265, 270 (Tenn. 1992) (citations omitted). Thus, we must determine whether the statement was obtained as a result of the prior constitutional violation and, therefore, must be excluded. The factors to be examined

in determining whether a confession has been purged of the taint of a prior constitutional violation include: (1) the giving of proper Miranda warnings; (2) the temporal proximity of the police misconduct and the confession; (3) the presence of

intervening cir

cumstances; a

nd (4) the p urpose and flagrancy of the official misconduct. Brown v. Illi nois , 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Crump , 834 S.W.2d at 272. Here, the police gave Miranda warnings to the d

efendant,but allowed no time to pa ss betweenthe defendant’s invocation of his right to remain silent and his statement. Moreover, there

were no intervening circumstances. In this case, it is clear that the statement was obtained as a direct result of the constitutional violation. Therefore, the entire statement following the defendant’s invocation of his rights, i.e., anything after the defendant said “no comment” the fir st time, must be suppressed. Crump , 834 S.W.2d at 272. Acco rdi ngly, this case is remanded to the trial court for furthe r proceedings

consistent with this opinion.

___________________________________ JERRY L. SMITH, JUDGE