Constitutional law - Massachusetts Supreme Judicial Court distinguishes Thompkins's unambiguous invocation requirement of right to remain silent - Commonwealth v. Clarke.

• Author: Soutter, David C.
• Position: Berghuis v. Thompkins

Constitutional Law--Massachusetts Supreme Judicial Court Distinguishes Thompkins's Unambiguous Invocation Requirement of Right to Remain Silent--Commonwealth v. Clarke, 960 N.E.2d 306 (Mass. 2012)

The United States Supreme Court famously held in Miranda v. Arizona that the Fifth Amendment privilege against self-incrimination granted a series of required safeguards, and outlined a way a suspect can invoke his rights. (1) In 2010, the Court revisited this issue in Berghuis v. Thompkins, holding that a suspect simply remaining silent was not enough, but he must "unambiguously" announce his intention to invoke the right to remain silent. (2) In Commonwealth v. Clarke, (3) the Supreme Judicial Court of Massachusetts (SJC) considered Thompkins in determining whether a suspect's head shaking constituted an unambiguous invocation of the right to remain silent. (4) The SJC held that the defendant's shaking of his head met the heightened Thompkins standard and also distinguished Thompkins because article XII of the Massachusetts Declaration of Rights did not require "utmost clarity" to invoke the right to remain silent. (5)

On October 10, 2008, two detectives from the Massachusetts Bay Transportation Authority (MBTA) Transit Police Department, Christopher Ahlborg and Audrina Lyles, arrested the defendant, Brandon Clarke, for indecent assault and battery and placed him in an interrogation room at MBTA headquarters. (6) After informing him that the interrogation would be videotaped, Detective Ahlborg gave Clarke a waiver form describing his Miranda rights. (7) When Clarke immediately began to sign the waiver, Detective Ahlborg stopped him because the detective wanted to discuss Clarke's rights with him verbally before obtaining the written waiver. (8) After Detective Ahlborg completed this review, an exchange took place between Clarke and Detective Ahlborg in which Clarke asked what would happen if he did not speak, to which Detective Ahlborg replied, "Nothing." (9) Following this answer, Clarke indicated that he wanted to go home, and when asked if he wanted to speak, Clarke "shook his head back and forth in a negative fashion." (10) Detective Lyles then interjected to correct what she perceived as a misperception--that by saying nothing Clarke would be free to leave--and informed Clarke that even if he said nothing, he would still be charged and held unless bailed. (11)

The conversation between the three continued during which Clarke indicated his confusion and anxiety about the interrogation; however, Clarke ultimately decided he wanted to talk to the detectives, signed the "Miranda waiver form," and admitted that he had repeatedly brushed his hand against a man on the subway. (12) At trial, Clarke moved to suppress his incriminating statements "arguing that he had invoked his right to remain silent by shaking his head in a negative fashion...." (13) The trial judge allowed the motion to suppress because he found Clarke's head shaking--in light of the totality of the circumstances--to be an unambiguous invocation of the right to remain silent. (14) The Commonwealth applied to the SJC for leave to appeal from the allowance of the motion to suppress; a single justice granted this application and reported the case to the full court. (15) The SJC upheld the trial judge's decision to suppress because Clarke's unambiguous invocation of his right to remain silent was not "scrupulously honor[ed]" when the officers continued the questioning and elicited the incriminating statements. (16) The court then determined that even if Clarke's action could be interpreted as not meeting Thompkins, the Massachusetts Constitution did not require a suspect to invoke his right to remain silent with the "utmost clarity" as required by federal law. (17)

In Miranda v. Arizona, the Supreme Court ruled that the Fifth Amendment privilege against self-incrimination required "procedural safeguards" to ensure law enforcement "scrupulously honored" a suspect's Fifth Amendment rights. (18) The Court held that before law enforcement officials may interrogate a person in custody, they must inform him of a series of rights including the right to remain silent and the right to both consult with a lawyer and have one present during questioning. (19) A suspect may waive these rights, but if waived, the prosecution must demonstrate that the suspect waived these rights "voluntarily, knowingly and intelligently." (20) Furthermore, if the suspect indicates "in any manner" before or during the interrogation that he does not want to be interrogated, law enforcement officials may not question him even if the suspect has already answered questions or volunteered statements. (21)

Although Miranda created a heavy burden on the government to prove effective waiver of these rights, lower courts developed separate interpretations about what actually constituted a proper invocation of the right to counsel. (22) In Davis v. United States, where the suspect had waived his rights and then made an ambiguous request for counsel, the Court held that a suspect must "unambiguously request counsel" such that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (23) In Berghuis v. Thompkins, the Court applied the "unambiguous" standard to the right to remain silent, holding there was "no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent...." (24) Not only did the Court apply this standard in the prewaiver context, but the Court seems to have departed from Miranda's "in any manner" language by requiring a suspect to actually announce in order to invoke his right to remain silent. (25)

The SJC may distinguish itself from Supreme Court holdings with regard to certain constitutional rights because the rights guaranteed under article XII of the Massachusetts Constitution, which are similar in scope to rights guaranteed by the Fifth Amendment, are "more expansive than those [rights] guaranteed by the Federal Constitution." (26) With regard to the right to counsel, the SJC had consistently applied an affirmative and unambiguous standard for proper invocation and did not distinguish from the Davis standard on state-law grounds under article XII. (27) In a case similar to Thompkins, the SJC applied the Davis standard to the right to remain silent but did not adopt the rule because the court only overturns a trial court's finding of fact on a "clearly erroneous" standard and saw no reason to "disturb the judge's findings." (28) In Commonwealth v. Mavredakis, the SJC outlined the factors the court would consider when determining if the article XII privilege against self-incrimination grants greater protection than the Constitution by "look[ing] to the text, history, and... jurisprudence existing in the Commonwealth" prior to the Supreme Court decision. (29)

In Clarke, the SJC analyzed the Fifth Amendment in light of Thompkins and article XII to determine if Brandon Clarke's actions were sufficient to invoke the right to remain silent. (30) In the Fifth Amendment analysis, the court first discussed the Supreme Court's ruling in Miranda and recognized that the Court had set a low bar for invoking the right to remain silent by allowing invocation "in any manner." (31) The SJC then discussed the heightened bar the Court had instituted in Thompkins by requiring suspects to "'unambiguously' announce their desire to be silent." (32) Applying Thompkins to the facts of the case at bar, the SJC upheld the trial judge's determination that Clarke "engaged in affirmative conduct indicating his desire to end police questioning." (33) The SJC rejected the Commonwealth's argument that Thompkins required verbal conduct in order to unambiguously invoke the right to remain silent because of Miranda's "in any manner" language and because of previous recognitions that nonverbal conduct can clearly communicate. (34) The SJC...