                                                                                           March 26 2013


                                          DA 11-0733

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2013 MT 81



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JEFFREY ALLEN NIXON,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC 10-137C
                       Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Colin M. Stephens, Smith & Stephens, P.C.; Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
                       Attorney General; Helena, Montana

                       Ed Corrigan, Flathead County Attorney; Alison Howard, Lori Adams,
                       Deputy County Attorneys; Kalispell, Montana



                                                   Submitted on Briefs: January 9, 2013

                                                              Decided: March 26, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    Following a five-day trial in July 2011, a jury convicted Jeffrey Allen Nixon of

accountability for deliberate homicide, robbery, tampering with physical evidence, and

burglary—all felonies. Nixon appeals his conviction on the ground that the Montana

Eleventh Judicial District Court, Flathead County, erred in denying his motion to

suppress statements he made during a custodial interrogation. We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2    On April 17, 2010, Sergeant Jim Wardensky of the Kalispell Police Department

responded to a report from Wesley Collins’s landlord that his apartment had been

burglarized. Police had been to the apartment the day before for a requested welfare

check on Collins and had not found him.        While Wardensky was investigating the

break-in, by-standers told additional responding officers that two individuals were

running out the back window of Collins’s apartment. One officer chased the individuals

and apprehended Robert Lake, who was taken into custody for questioning. Although

Lake initially blamed Nixon for Collins’s disappearance, within hours, Lake “had

admitted to killing Mr. Collins and putting his body up in the Patrick Creek area.” Lake

made statements further implicating Nixon in the homicide and proceeded to show

Wardensky where Collins’s body was located.

¶3    In the early hours of April 18, Nixon’s father was driving Nixon home from his

older brother’s bachelor party.   During the party, which lasted approximately seven

hours, Nixon estimated he consumed about ten drinks. On their way home, Nixon and

                                        2
his father were stopped by four law enforcement officers who, with weapons drawn,

detained the two and then transported Nixon to the Kalispell Police Station for

questioning.1 An arresting officer informed Nixon during transport that he had been

arrested on two outstanding misdemeanor warrants; he was not informed that he was the

subject of a homicide investigation.

¶4        Nixon arrived at the police station at 4:30 a.m. and was given a copy of his

outstanding warrants.          All movements and statements he made at the station were

videotaped by Kalispell police. At first, Nixon was left alone in the booking area of the

station for approximately two hours, during which time he slept on a bench. Just prior to

7:00 a.m., Sergeant Wardensky woke Nixon up and began to interview him. Wardensky

asked Nixon if he had been drinking; Nixon admitted that he had had “quite a bit” to

drink. Wanting to ensure that Nixon was not incapacitated, Wardensky asked Nixon to

provide a breath sample on a portable breath testing device. The test showed Nixon’s

blood alcohol content to be .08. Wardensky then told Nixon that what he would like to

do is “visit with you a little bit about something that I’ve been looking at and working on,

starting yesterday morning I guess.” First, however, Wardensky asked Nixon a series of

general questions about where he lived, the bachelor party he had attended, and his

brother’s impending wedding.

¶5        Wardensky then read Nixon his rights pursuant to Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602 (1966), as provided on the Kalispell Police Department’s “YOUR


1
    The basis for the traffic stop is not at issue on appeal.
                                                   3
RIGHTS” form. The following dialogue occurred immediately after Wardensky read

Nixon his rights:

       NIXON:           Just a slight question.
       WARDENSKY:       Sure.
       NIXON:           Why did you ask me questions before you read me my
                        rights?
       WARDENSKY:       Um…
       NIXON:           I was just curious…
       WARDENSKY:       Curious, and, and ah, I would be happy to answer that.
                        Because, uh, I wanted to see what your cognitive
                        process is, ya know, and ah, given the fact that you’ve
                        had a little bit to drink tonight, I wanted to see if, you
                        know, if you could answer a few questions, and ah,
                        you know, and see if things are cooking up seriously
                        upstairs for ya. They seem to be, so. Okay does that
                        answer that for ya?
       NIXON:           Yeah.
       WARDENSKY:       Okay, do you want to talk to me?
       NIXON:           There isn’t really anything to talk about.
       WARDENSKY:       Well, I’ve got a bunch.
       NIXON:           I’m tired. I’ve been up since six yesterday morning
                        and I’ve been sitting here for a while.
       WARDENSKY:       Well that’s pretty ironic, so have I.
       NIXON:           Yeah, if I was you I would be home sleeping…
       WARDENSKY:       Well, hopefully that’ll be the case here shortly.
       NIXON:           I sure hope so, I’ve got a wedding here in a couple of
                        hours.
       WARDENSKY:       Yeah. So, you interested in talking with me Jeff?
       NIXON:           I really don’t have anything to talk about. I was told I
                        was brought in here on traffic tickets, but one of ’ems
                        a traffic ticket, the other one’s a theft. I don’t really
                        have anything to talk about.
       WARDENSKY:       Okay. Well, there’s a little more to it than that and
                        that’s what I would like to talk to you about.
       NIXON:           Talk away, sir.
       WARDENSKY:       Okay. Um, one of the things that I would like to do
                        Jeff, is ah, get a signature from you and all that, that
                        says I read this to you and you understand, okay? You
                        wanna hop up here and sign that for me?
       NIXON:           Do I get to read it first.
                                     4
          WARDENSKY:           Absolutely, here you go.
          NIXON:               (Reads and signs paper.)2

¶6        After Nixon read and signed the statement identifying his Miranda rights,

signaling that he understood those rights and was willing to talk to law enforcement,

Wardensky began to ask him general questions about Robert Lake and Wesley Collins.

Although initially Nixon stated that he had had limited contact with Collins, eventually

he explained that he had smoked marijuana with Collins on several occasions.

Wardensky then informed Nixon that the Kalispell Police Department had received a

missing person’s report regarding Collins. Nixon did not invoke his right to remain silent

at that point, and instead answered Wardensky’s questions about when he last had seen

Collins. Wardensky then “cut to the chase,” told Nixon he knew “Wes is dead” and

informed Nixon that he was conducting a homicide investigation. Nixon did not invoke

his right to remain silent at that point, but continued to answer Wardensky’s questions

about the events surrounding Collins’s death.

¶7        On April 22, 2010, the Flathead County Attorney filed an information charging

Nixon with causing the death of Wesley Collins. The county attorney later filed an


2
    The Kalispell Police Department “YOUR RIGHTS” form reads as follows:
                 You have the right to remain silent. Anything you say can and
         may be used against you in a court of law. You have the right to talk to a
         lawyer and have him present with you while you are being questioned. If
         you cannot afford to hire a lawyer, one will be appointed to represent you
         before any questioning if you wish one. If you decide to answer questions
         now without a lawyer present, you will still have the right to stop
         answering at any time. You also have the right to stop answering at any
         time until you talk to a lawyer.
                 Do you understand each of these rights I have explained to you and
         having these rights in mind, do you wish to talk to us now?
                                              5
amended    information    charging    Nixon    with   the   following    felony      offenses:

(1) Accountability for Deliberate Homicide in violation of §§ 45-2-302(3) and 45-5-

102(1)(a), MCA, and, in the alternative, Deliberate Homicide, in violation of § 45-5-

102(1)(b), MCA; (2) Robbery, in violation of § 45-5-401(1)(a), MCA; (3) Tampering

with Physical Evidence, in violation of § 45-7-207(1)(a), MCA; and (4) Burglary, in

violation of § 45-6-204(1)(b), MCA.

¶8     Nixon filed a motion to suppress statements he made during his interview with

Sergeant Wardensky. The District Court held a hearing on the matter on September 17,

2010. Both Nixon and Wardensky testified. The court viewed portions of the videotaped

interview and admitted several pages of a transcript of the interview into evidence.

Nixon also testified; he stated that he understood his Miranda rights during the interview

and acknowledged that he never specifically told Wardensky that he did not want to talk

to him, although he did say that he did not really have anything to talk about. After the

hearing, the District Court denied Nixon’s motion to suppress. The court found that

Nixon voluntarily agreed to answer Wardensky’s questions and further concluded that

Nixon “did not unambiguously invoke his right to remain silent and in fact, when he

directs the officer to ‘talk away’ he appears to be agreeing to answer questions.”

¶9     Nixon’s trial began on July 11, 2011. Several of Nixon’s acquaintances testified

against him, including some who had been charged in connection with Collins’s death.

Nixon also testified on his own behalf. The trial testimony established that Collins lived

upstairs from Lake and his girlfriend and that Nixon, Lake and Collins had smoked

                                         6
marijuana together on occasion. Testimony showed that, on April 12, 2010, Collins

invited Nixon and Lake into his apartment to smoke marijuana.           While they were

smoking, Lake knocked Collins unconscious by striking him in the head with a claw

hammer. Lake then told Nixon to shut the blinds in the apartment and check whether

Collins’s marijuana plants were budding; Nixon followed Lake’s directions.          When

Collins began to regain consciousness, Lake responded by striking him with another

hammer and eventually proceeding to strangle him with string.

¶10    After Collins was dead, Nixon left the apartment to purchase cigarettes at a nearby

gas station. He acknowledged at trial that he could have called the police at this point,

but he chose not to. Instead, he returned to the apartment complex and played an integral

role in disposing of Collins’s body.

¶11    Nixon told Lake that they should dump Collins’s body at Patrick Creek, a remote

area in the mountains. Nixon borrowed a truck from a friend to transport the body. Then

he, Lake, and Lake’s friend wrapped Collins’s body in blankets and threw it out the

window. Nixon drove the truck to the back of the apartment and the trio loaded Collins’s

body into the truck bed. Nixon drove to Patrick Creek, where they dumped the body.

The next morning, Nixon attempted to drive back to Patrick Creek to pour lye on

Collins’s body, but he was unable to reach the body because it had snowed that night.

¶12    The State did not introduce the video of Wardensky’s interview with Nixon as

evidence or play it for the jury. The State points out that the only time it referenced the

interview in its case-in-chief was during its direct examination of Wardensky:

                                         7
       Q. Jim, let’s talk about the interview of the Defendant. When you were
       interviewing Mr. Nixon did he admit to being a lookout?
       A. Yes.
       Q. Did he admit to taking anything?
       A. Yes, he did.
       Q. What did he admit to taking?
       A. Marijuana.

In addition, the State used statements from the interrogation in cross-examining Nixon.

¶13    After deliberating for over four hours, the jury found Nixon guilty of robbery,

accountability for deliberate homicide, tampering with physical evidence, and burglary.

The District Court subsequently committed Nixon to the Montana State Prison for a net

sentence of 100 years.

¶14    Nixon argues that his conviction should be reversed and a new trial granted

because of the District Court’s refusal to suppress statements he made during his

custodial interrogation.

                               STANDARD OF REVIEW

¶15    When reviewing a district court’s ruling on a motion to suppress, we “determine

whether the findings of fact are clearly erroneous and whether the court correctly

interpreted the law and applied it to those facts.” State v. Haldane, 2013 MT 32, ¶ 15,

368 Mont. 396, ____ P.3d _____ (citing State v. Anders, 2012 MT 62, ¶ 9, 364 Mont.

316, 274 P.3d 720). A factual finding is clearly erroneous if it is “not supported by

substantial evidence, if the court has misapprehended the effect of the evidence, or if this

Court’s review of the record leaves us with a definite or firm conviction that a mistake

has been made.” State v. Morrisey, 2009 MT 201, ¶ 14, 351 Mont. 144, 214 P.3d 708.

                                         8
                                     DISCUSSION

¶16    Whether the District Court erred in denying Nixon’s motion to suppress

statements he made during his custodial interrogation with Sergeant Wardensky.

¶17    No person “shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. The Fifth Amendment’s Self-Incrimination Clause

applies to the States through the Fourteenth Amendment’s Due Process Clause. Malloy

v. Hogan, 378 U.S. 1, 6-11, 84 S. Ct. 1489, 1492-95 (1964). The Montana Constitution

similarly provides that “[n]o person shall be compelled to testify against himself in a

criminal proceeding.” Mont. Const. art. II, § 25.

¶18    This privilege against self-incrimination is “available outside of criminal court

proceedings and serves to protect persons ‘in all settings in which their freedom of action

is curtailed in any significant way from being compelled to incriminate themselves.’”

Morrisey, ¶ 27 (quoting Miranda, 384 U.S. at 467, 86 S. Ct. at 1624). Because the

modern practice of custodial interrogation “contains inherently compelling pressures

which work to undermine the individual’s will to resist and to compel him to speak where

he would not otherwise do so freely,” the Supreme Court has established “concrete

constitutional guidelines” for law enforcement agencies to follow. Miranda, 384 U.S. at

467, 442, 86 S. Ct. at 1624, 1611. When a person “is taken into custody or otherwise

deprived of his freedom by the authorities in any significant way and is subjected to

questioning,” he “‘must be adequately and effectively apprised of his rights and the




                                         9
exercise of those rights must be fully honored.’” Morrisey, ¶ 28 (quoting Miranda, 384

U.S. at 478, 467, 86 S. Ct. at 1630, 1624).

¶19    These rights, commonly known as Miranda rights, mandate that before a person

may be subjected to a custodial interrogation, “he ‘must be warned prior to any

questioning that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney, and that

if he cannot afford an attorney one will be appointed for him prior to any questioning if

he so desires.’” Morrisey, ¶ 28 (quoting Miranda, 384 U.S. at 479, 86 S. Ct. at 1630).

Failure by law enforcement officers to give these warnings and obtain a waiver of rights

prior to a custodial interrogation “generally requires exclusion of any statements

obtained.” Morrisey, ¶ 28.

¶20    There is no dispute in this case that Nixon was subjected to a custodial

interrogation when he was interviewed by Sergeant Wardensky at the police station. See

State v. Munson, 2007 MT 222, ¶ 21, 339 Mont. 68, 169 P.3d 364. Nixon does not assert

that Sergeant Wardensky failed to read the aforementioned Miranda rights prior to

questioning him. The video recording of Nixon’s interview reveals that Wardensky read

the Miranda warnings to Nixon and provided him with a written copy of his rights, which

Nixon read and signed. At the suppression hearing, Nixon testified that he understood

each of those rights. Nixon contends, instead, that he invoked his right to remain silent

or, in the alternative, that he did not voluntarily waive his rights. For those reasons,




                                         10
Nixon alleges, the District Court erred when it failed to suppress the statements he made

to Wardensky.

       A. Whether Nixon invoked his right to remain silent.

¶21    Nixon contends that he “attempted to invoke his Fifth Amendment right to remain

silent when he said three separate times: ‘I don’t really have anything to talk about.’”

The State responds that Nixon did not articulate a desire to remain silent “sufficiently

clearly that a reasonable officer in the circumstances would have understood Nixon’s

statements to be an invocation of his Miranda right to remain silent” as required by the

Supreme Court in Berghuis v. Thompkins, ___ U.S. ___, 130 S. Ct. 2250 (2010).

¶22    In Berghuis, Van Chester Thompkins was arrested as a suspect in a shooting and

subjected to a custodial interrogation. Berghuis, ___ U.S. at ___, 130 S. Ct. at 2256. At

the beginning of the interrogation, officers read Thompkins his Miranda rights and

presented him with a form explaining those rights. Thompkins refused the officers’

request to sign the form to demonstrate that he understood his rights, but the officers

nonetheless began to interrogate him. At no point during the interrogation, which lasted

about three hours, did Thompkins say that he wished to remain silent. He was “‘largely’

silent” during the interrogation, but he did provide some limited verbal and nonverbal

interaction with his interrogating officers. Berghuis, ___ U.S. at ___, 130 S. Ct. at 2256.

¶23    After two hours and forty-five minutes of questioning, a police officer asked

Thompkins whether he believed in God and whether he prayed to God. Thompkins said

“yes” in response to both questions. The officer then asked Thompkins whether he had

                                         11
asked God to forgive him for “shooting that boy down”; Thompkins again said “yes.”

Berghuis, ___ U.S. at ___, 130 S. Ct. at 2257. The district court denied Thompkins’s

motion to suppress statements he made during the interrogation and, after a jury trial, he

was found guilty of first-degree murder. Berghuis, ___ U.S. at ___, 130 S. Ct. at

2257-58.

¶24    On appeal, the Supreme Court was asked whether Thompkins had invoked his

right to remain silent “by not saying anything for a sufficient period of time.” Berghuis,

___ U.S. at ___, 130 S. Ct. at 2259.          Although it had not yet stated “whether an

invocation of the right to remain silent can be ambiguous or equivocal,” the Court found

“no principled reason to adopt different standards for determining when an accused has

invoked the Miranda right to remain silent and the Miranda right to counsel at issue” in

Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350 (1994). Berghuis, ___ U.S. at ___,

130 S. Ct. at 2260. The Court noted that in Davis it had held that if an accused “makes a

statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no

statement, the police are not required to end the interrogation. . . .” Berghuis, ___ U.S. at

___, 130 S. Ct. at 2259-60 (quoting Davis, 512 U.S. at 461-62, 114 S. Ct. at 2355).

Because Thompkins did not unambiguously and unequivocally state that he did not wish

to talk to the police, the Court held that he did not invoke his right to remain silent.

Berghuis, ___ U.S. at ___, 130 S. Ct. at 2260.

¶25    Nixon attempts to distinguish his case from Berghuis on the grounds that Nixon

actually invoked his right to remain silent whereas Thompkins did not, and urges the

                                         12
Court not to adopt Berghuis in any event. Nixon argues that the Montana Constitution

should be construed to provide broader protection of the right against self-incrimination.

He contends that his statements, “I don’t really have anything to talk about,” invoked his

right to remain silent.

¶26    We are not bound by decisions of the U.S. Supreme Court “where independent

state grounds exist for developing heightened and expanded rights under our state

constitution.” Butte Community Union v. Lewis, 219 Mont. 426, 433, 712 P.2d 1309,

1313 (1986). When a party urges us to recognize expanded rights under the Montana

Constitution, that party bears the burden of proving “that a unique aspect of the Montana

Constitution, or the background material related to the provision, provides support for the

greater protection that he seeks to invoke.” State v. Covington, 2012 MT 31, ¶ 21, 364

Mont. 118, 272 P.3d 43. A party may satisfy this burden in at least one of three ways: by

“identify[ing] unique language within the Montana Constitution” dictating enhanced

protection; by “referenc[ing] Constitutional Convention transcripts and committee

reports” showing that the delegates intended to provide greater protection; or by

establishing that the right alleged “must be read in conjunction with” other specified

rights unique to the Montana Constitution. State v. Myran, 2012 MT 252, ¶ 25, 366

Mont. 532, 289 P.3d 118 (citing Covington, ¶ 21).

¶27    Nixon has not identified any language unique to the Montana Constitution or cited

to any references from Montana’s Constitutional Convention that suggest the right to

remain silent in Article II, Section 25 provides greater protections than the same right

                                        13
provided by the United States Constitution.        Consequently, he has the burden of

demonstrating that the right to remain silent, when read in conjunction with other unique

rights guaranteed by the Montana Constitution, must take on broader meaning. Myran,

¶ 25. For example, when the right to be free from unreasonable searches and seizures

found in Article II, Section 11 of the Montana Constitution is read together with the

Article II, Section 10 right of privacy, it provides greater protections than the Fourth

Amendment’s right against unreasonable searches and seizures. State v. Bullock, 272

Mont. 361, 383-85, 901 P.2d 61, 75-76 (1995). Article II, Section 10, enhances the

protection because “there is no similar textual language in the United States Constitution

and we have therefore recognized that this section grants rights beyond that inferred from

the United States Constitution.” Bullock, 272 Mont. at 383, 901 P.2d 61, 75. Similarly,

when the Article II, Section 22 prohibition against cruel and unusual punishments is read

together with the Article II, Section 4 right of individual dignity, it “provide[s] Montana

citizens greater protections from cruel and unusual punishment than does the federal

constitution” because the federal constitution “does not expressly provide for the right to

human dignity.” Walker v. State, 2003 MT 134, ¶ 73, 316 Mont. 103, 68 P.3d 872.

¶28    We decline Nixon’s invitation to read protections into Article II, Section 25’s right

to remain silent that are greater than those found in the Fifth Amendment of the United

States Constitution. He contends that the Montana Constitution’s right to remain silent

must be read together with its right to counsel in custodial interrogations to provide

additional protections to individuals invoking their right to not speak with law

                                         14
enforcement officers. But the right to counsel during custodial interrogation also is

rooted in the Fifth Amendment. State v. Scheffer, 2010 MT 73, ¶ 17, 355 Mont. 523, 230

P.3d 462; Miranda, 384 U.S. at 469-70, 86 S. Ct. at 1625-26; McNeil v. Wis., 501 U.S.

171, 176-78, 111 S. Ct. 2204, 2208-09 (1991). We have in fact interpreted that right

consistent with the principles articulated in Davis.      That is, “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, the officer is not required to cease questioning.” Scheffer, ¶ 31. We

also applied Davis to assertion of the right to counsel in State v. Main, 2011 MT 123,

¶¶ 17-19, 360 Mont. 470, 255 P.3d 1240 (affirming the district court’s determination that

Main “did not clearly or unequivocally request a lawyer”). The right to counsel during

custodial interrogations is not unique to Montana’s constitution; the right to remain silent,

therefore, is not enhanced by reading the two together. Myran, ¶¶ 25-26.

¶29    Nixon’s contention that we should not require that a suspect unambiguously and

unequivocally invoke his or her right to remain silent finds little support in our recent

opinions on the right to remain silent. In State v. Morrisey, decided prior to Berghuis, the

State argued that a suspect’s “invocation of his right to remain silent was invalid because

it was ambiguous or equivocal.” Morrisey, ¶ 39. We noted that “the Supreme Court has

not yet directly addressed whether [Davis] applies to the right to remain silent.”

Morrisey, ¶ 39. Assuming arguendo that a person in custody must invoke his right to

remain silent “‘sufficiently clearly that a reasonable police officer in the circumstances

                                         15
would understand the statement to be’ an assertion of the right,” Morrisey, ¶ 39 (quoting

Davis, 512 U.S. at 459, 114 S. Ct. at 2355), we noted that the critical question is whether

the suspect’s “right to cut off questioning was ‘scrupulously honored.’” Morrisey, ¶ 34

(quoting Mich. v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326 (1975)). Although

Morrisey’s pre-Miranda-waiver statement that “I ain’t saying nothing” constituted an

assertion of his right to remain silent, we determined that once the formal interview

began, Morrisey voluntarily changed his mind and spoke freely with the interrogating

officers. Morrisey, ¶¶ 40, 43-44.

¶30    In State v. Jones, we concluded that “Jones’s statements that he was ‘through

talking’ [did] not constitute an unequivocal invocation of his right to counsel or to remain

silent on the facts of this case” and, therefore, he did not invoke those rights. State v.

Jones, 2006 MT 209, ¶ 27, 333 Mont. 294, 142 P.3d 851 (emphasis added).

¶31    Finding no basis in Montana’s Constitution or our prior case law for an expanded

right against self-incrimination, we now adopt Berghuis and its application of the Davis

standard to a suspect’s invocation of the right to remain silent. Like the Supreme Court,

we hold that “there is no principled reason to adopt different standards for determining

when an accused has invoked the Miranda right to remain silent and the Miranda right to

counsel at issue in Davis.” Berghuis, ___ U.S. at ___, 130 S. Ct. at 2260. Although there

are no “talismanic phrases or any special combination of words” required to invoke one’s

right to remain silent, Morrisey, ¶ 40 (quoting U.S. v. Ramirez, 79 F.3d 298, 304 (2d. Cir.

1996)), a suspect must articulate his desire to remain silent “sufficiently clearly that a

                                         16
reasonable police officer in the circumstances would understand the statement to be a

request” to not speak with the police. Davis, 512 U.S. at 459, 114 S. Ct. at 2355

(citations omitted). If the suspect does not unambiguously and unequivocally invoke his

right to remain silent in this manner, then the interrogating officers are not required to

stop questioning the suspect pursuant to Article II, Section 25 of the Montana

Constitution. See Davis, 512 U.S. at 459, 114 S. Ct. at 2355. We apply this standard to

the facts presented by Nixon.

¶32    Whether a suspect invokes his right to remain silent “is an objective inquiry.”

Morrisey, ¶ 40. In making this inquiry, we do not merely look to specific passages from

a transcript in isolation; we “also consider the circumstances in which the statement was

made.” Scheffer, ¶ 29 (quoting U.S. v. Shabaz, 579 F.3d 815, 819 (7th Cir. 2009)).

¶33    When Nixon was arrested, police advised him that he was being held on two

outstanding misdemeanor warrants and gave him paperwork detailing those warrants.

When Wardensky first asked Nixon if he wanted to talk to him, Nixon replied: “There

isn’t really anything to talk about.” Moments later, when Wardensky again asked Nixon

if he would be willing to speak with the police, Nixon replied: “I really don’t have

anything to talk about. I was told I was brought in here on traffic tickets, but one of

’em’s a traffic ticket, the other one’s a theft. I don’t really have anything to talk about.”

¶34    Given this context, a reasonable police officer in the circumstances would

understand Nixon’s statements to mean that the outstanding warrants were

self-explanatory and did not provide a sufficient topic of conversation. Once Wardensky

                                          17
provided Nixon with a topic of conversation—“there’s a little more to it than [the

misdemeanor warrants] and that’s what I would like to talk to you about”—Nixon

affirmatively agreed to speak with the police, stating, “talk away sir,” and signing the

waiver of rights form. Wardensky’s clarification was appropriate. We have held that to

the extent they believe a suspect’s statement to be ambiguous or equivocal, it is “‘good

police practice’ . . . [for police officers to ask questions] to clarify whether or not the

suspect is actually invoking his Miranda rights.” Morrisey, ¶ 41 n. 8 (citing Davis, 512

U.S. at 461, 114 S. Ct. at 2356).       Asking these clarifying questions protects the

constitutional rights of the suspect and minimizes “the chance of a confession being

suppressed due to subsequent judicial second-guessing . . . .” Morrisey, ¶ 41 n. 8 (citing

Davis, 512 U.S. at 461, 114 S. Ct. at 2356). Once Wardensky advised Nixon that there

was more to talk about than the traffic citations, Nixon invited additional discussion. The

District Court’s finding that Nixon “did not unambiguously invoke his right to remain

silent” is supported by substantial credible evidence. Once Nixon had signed the waiver

of rights form and Sergeant Wardensky began discussing Collins’s death, Nixon spoke

freely. As in Morrisey, Nixon’s right to cut off questioning was not infringed. See

Morrisey, ¶ 44.

       B. Whether Nixon voluntarily waived his Miranda rights.

¶35    In the alternative, Nixon argues that even if he did not invoke his right to remain

silent, he did not waive his Miranda rights in a knowing, voluntary, and intelligent

manner. Any waiver he made was constitutionally-deficient, he alleges, because he was

                                        18
psychologically coerced, he was intoxicated, he had slept for only two hours that night,

the waiver form he signed was confusing, and Sergeant Wardensky initially misled him

about the scope of his custodial interrogation. The State counters by asserting that, under

the totality of the circumstances, the District Court correctly concluded that Nixon made

a valid waiver of his rights.

¶36    A suspect may waive his Miranda rights provided that the waiver “is made

voluntarily, knowingly, and intelligently.”    Main, ¶ 21.    This is a two-dimensional

inquiry. First, the waiver “must have been voluntary in the sense that it was the product

of a free and deliberate choice rather than intimidation, coercion, or deception.” Main,

¶ 21 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986)).

Second, the waiver must have been made “with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.” Main, ¶ 21

(quoting Moran, 475 U.S. at 421, 106 S. Ct. at 1141).

¶37    A court’s inquiry into whether a waiver was voluntary under the totality of

circumstances is factual in nature. State v. Hoffman, 2003 MT 26, ¶ 19, 314 Mont. 155,

64 P.3d 1013. This requires consideration of “the particular facts and circumstances

surrounding [the] case, including the background, experience, and conduct of the

accused” as well as the “age, education, and intelligence of the accused, and his capacity

to understand the warnings given him, the nature of his Fifth Amendment rights, and the

consequences of waiving those rights.” Main, ¶ 21 (quoting State v. Blakney, 197 Mont.

131, 138, 641 P.2d 1045, 1049 (1982)). Furthermore, a statement “extracted by any sort

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of threat or violence, by the exertion of any improper influence, or by any direct or

implied promises, however slight, has the potential for being involuntary.” Hoffman,

¶ 19. A court properly may conclude that a suspect has waived his or her Miranda rights

“[o]nly if the ‘totality of the circumstances surrounding the interrogation’ reveals both an

uncoerced choice and the requisite level of comprehension.” Main, ¶ 21 (quoting Moran,

475 U.S. at 421, 106 S. Ct. at 1141).

¶38    The District Court found that, “[a]t the time of the interview[,] [Nixon] was 18

years of age, had completed the 12th grade and graduated from high school, had no

difficulty reading, no difficulty with English, and was familiar with the Miranda

advisement.” After viewing a video of Nixon’s interactions with Sergeant Wardensky,

the District Court further found:

       The Defendant’s questions and responses clearly indicate that he
       understood the questions, the procedure, and that he had the ability to
       engage in meaningful conversation with the officer. He earlier in the
       evening had reviewed the 2 outstanding warrants and some hours later was
       able to indicate that both were not for traffic tickets and in fact one was for
       theft. This again clearly indicates that he was able [to] read, process and
       understand what he read, [including] the Miranda form which he signed.

After analyzing the totality of the circumstances, the District Court concluded that Nixon

waived his Miranda rights in a knowing, intelligent, and voluntary manner. We find no

error in this conclusion.

¶39    Nixon first claims that any waiver he made was involuntary because he was

intoxicated and sleep-deprived at the time he was interviewed. Wardensky knew Nixon’s

blood alcohol content was .08, so he asked Nixon various background questions to

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determine whether he was lucid enough to submit to a custodial interrogation.

Wardensky was satisfied with Nixon’s answers, and there is no indication that Nixon did

not understand the questions or otherwise was incapacitated by intoxication. Although he

testified at the suppression hearing that he had difficulty focusing on the written copy of

his rights, he did not tell this to Wardensky during the interrogation and it is not apparent

when viewing the videotaped interrogation.

¶40    We have determined that a suspect’s waiver of Miranda rights was valid even

though he had consumed alcohol within six hours of his interrogation, he “smelled of

alcohol and occasionally slurred his words.” Main, ¶ 23. Our decision was guided by the

fact that, like Nixon, the suspect in Main “wasn’t stumbling” and he “answered questions

in an articulate manner.” Main, ¶ 23. Similarly, we have cited with approval a case from

the Court of Appeals for the Eighth Circuit where a suspect validly waived his Miranda

rights even though he recently had used methamphetamine and had not slept in five days,

but was able to converse coherently with law enforcement officers. Hoffman, ¶ 26 (citing

U.S. v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990)). The videotaped interrogation

undermines Nixon’s contention that he was too intoxicated and sleep-deprived to

understand what was happening; instead, he interrupted to seek clarification when he

wanted it and answered Wardensky’s questions in a clear, coherent manner. See State v.

Cassell, 280 Mont. 397, 403, 932 P.2d 478, 481-82 (1996).

¶41    Nixon also claims that, because he was arrested at gunpoint, he was intimidated

and psychologically coerced. A suspect’s statement “extracted by any sort of threat or

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violence . . . has the potential for being involuntary.” State v. Loh, 275 Mont. 460, 476,

914 P.2d 592, 602 (1996). While it is true that Nixon was arrested at gunpoint, the

custodial interrogation took place nearly four hours after Nixon’s arrest.       Sergeant

Wardensky did not threaten Nixon or psychologically coerce him at any time during his

questioning. Nixon’s claim on this point is without merit.

¶42   Nixon next claims that his waiver of Miranda rights was involuntary because the

“YOUR RIGHTS” form he signed, which presented each of his rights in writing, was

confusing.   When a suspect is presented with a waiver form that is “erroneous,

intimidating and virtually indecipherable,” a suspect cannot “enter into a knowing,

intelligent or voluntary waiver” of his Miranda rights. State v. Mann, 2006 MT 33, ¶ 24,

331 Mont. 137, 130 P.3d 164. In Mann, the waiver form the police presented to the

suspect for signature contained incorrect legal statements and was worded in such a way

that it was confusing and difficult to understand. Mann, ¶¶ 23-24.

¶43   Nixon does not allege that the form he signed contained legal errors, instead, he

alleges that the waiver form is “indecipherable” because it does not contain the word

“waiver” and because “the last sentence is a compound sentence.” His assertion that the

form was confusing is belied by his testimony at the suppression hearing, where he stated

that he understood each of his Miranda rights after Wardensky read the waiver form to

him. His argument on this point lacks factual basis and is without merit.

¶44   Finally, Nixon argues that Wardensky deceived him by “misleading Mr. Nixon to

believe that he was brought in for misdemeanor charges alone.” Without citing any

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authority, he contends that, “[a]fter Wardensky gave [him] this false impression, [he]

could no longer make a knowing, intelligent and voluntary decision to waive his Miranda

rights.” Nixon’s claim that Wardensky said he was being questioned only because of

misdemeanor charges is incorrect.        Before he read Nixon the Miranda warnings,

Wardensky told Nixon that he would like to “visit with you a little bit about something

that I’ve been looking at and working on, starting yesterday morning I guess.” Although

Wardensky did not inform Nixon that he was the subject of a homicide investigation, that

does not render Nixon’s waiver involuntary. The United States Supreme Court “has

never held that mere silence by law enforcement officials as to the subject matter of an

interrogation is ‘trickery’ sufficient to invalidate a suspect’s waiver of Miranda rights[.]”

Colo. v. Spring, 479 U.S. 564, 576, 107 S. Ct. 851, 858 (1987).

¶45    The totality of the circumstances supports the District Court’s finding that Nixon’s

waiver of his Miranda rights was voluntary, knowing and intelligent. Nixon was an

eighteen-year-old man of normal intelligence who received a complete and timely

Miranda warning. He signed the Kalispell Police Department form explaining those

rights; his signature indicated that he understood his rights and was willing to talk to the

police. Nixon later testified at the suppression hearing that he understood each of his

rights after Wardensky read them to him. Nixon then waived his right to remain silent by

answering Wardensky’s questions. There is no evidence in the record of any coercive or

other improper conduct by the police that would render Nixon’s waiver involuntary. In

fact, Nixon cannot point to any moment during the custodial interrogation when his state

                                         23
of intoxication, his lack of sleep, the supposed psychological coercion he experienced, or

the confusing waiver form actually affected his ability to voluntarily, knowingly, and

intelligently waive his Miranda rights. See Hoffman, ¶ 28. We conclude that the District

Court’s finding that Nixon’s Miranda waiver and subsequent statements to the police

were voluntary was supported by substantial credible evidence and its conclusions of law

were correct. Main, ¶ 24.

¶46   The District Court correctly denied Nixon’s motion to suppress. The judgment is

affirmed.

                                                /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON




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