         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                        :
                                         :         Case No. 1706021180
    v.                                   :         In and For Kent County
                                         :
RAYMOND WARD                             :
                                         :
         Defendant.                      :


                               OPINION & ORDER


                              Submitted: June 27, 2018
                              Decided: August 7, 2018

                        Upon Defendant’s Motion to Suppress
                      GRANTED, IN PART & DENIED, IN PART

Jason C. Cohee & Stephen E. Smith, Deputy Attorneys General, DEPARTMENT OF
JUSTICE, Dover, Delaware, Attorneys for the State.

Thomas D. Donovan, Esquire, OFFICE OF CONFLICTS COUNSEL, Dover,
Delaware, & Zachary A. George, Esquire, HUDSON, JONES, JAYWORK &
FISHER, Dover, Delaware, Attorneys for the Defendant.




Clark, J
         The State charges Defendant Raymond Ward (hereinafter “Mr. Ward”) with
Murder in the First Degree for his alleged participation in the 2017 murder of
Dequan Dukes. Mr. Ward moves to suppress statements made to the Dover Police
pursuant to Miranda v. Arizona1 (hereinafter referred to as “Miranda”). Based on
the evidence presented at a suppression hearing, Mr. Ward argues that he did not
waive his rights, and if he did, he later sought to invoke them twice but the
interrogating officer did not scrupulously honor his invocation of those rights.
         The State argues that the evidence at the suppression hearing established that
Mr. Ward expressly waived his rights. The State concedes, however, that at two
points later in the interview, Mr. Ward ambiguously invoked his right to stop the
interrogation. Nevertheless, the State argues that at both points, the detective
clarified that Mr. Ward wanted to continue.
         After considering the evidence presented, the Court finds that the State met
its burden of proving by a preponderance of the evidence that Mr. Ward waived his
Miranda rights. Furthermore, the Court finds that after Mr. Ward first ambiguously
asserted his rights, he signaled his desire to continue the session. After the second
ambiguous assertion, however, the detective did not ask clarifying questions to
establish Mr. Ward’s intent. As a consequence, any statements made after Mr.
Ward’s second invocation of his right to remain silent, must be suppressed from use
at trial.    For these reasons and those that follow, Mr. Ward’s motion to suppress
pursuant to Miranda is GRANTED, IN PART, and DENIED, IN PART.


                     Findings of Fact after the Suppression Hearing
         On June 13, 2018, the Court held a suppression hearing and finds the
following facts by a preponderance of the evidence. The State charges Mr. Ward
with the felony murder of Dequan Dukes, who was shot and killed on June 27, 2017.

1
    384 U.S. 436 (1966).
                                               2
The State also charges Mr. Ward with Attempted Robbery First Degree, Possession
of a Firearm During the Commission of a Felony, and Conspiracy Second Degree.
At the time the police took him into custody, he allegedly illegally possessed a
firearm that was unassociated with the Dequan Dukes shooting.
      A detective conducted a custodial interrogation of Mr. Ward at the Dover
Police station (hereinafter the “station”). Although the interrogating detective did
not participate in Mr. Ward’s arrest, he volunteered to question Mr. Ward because
they went to the same high school and played on the same high school basketball
team. The record of the custodial interrogation is divided into two segments. The
first segment is a video recording that takes place in an interview room at the station.
The second segment is an audio recording of the second portion of the interrogation
taking place in another room at the station.
      The detective began the questioning by telling Mr. Ward that he had to read
him his Miranda rights before continuing. Upon entering the room, the detective’s
demeanor and body language were familiar and non-threatening. After reading Mr.
Ward his Miranda rights, the detective asked him “do you understand these rights
that I have explained to you?” Based upon the detective’s testimony at trial and the
Court’s review of the video, the Court finds that Mr. Ward nodded affirmatively.
      Next, the detective asked Mr. Ward: “having these rights in mind, do you wish
to talk to me know? Just about what, what, like I said downstairs, about today.” The
detective testified that Mr. Ward responded “oh yeah,” although the detective
admitted he did not have an independent recollection as to what Mr. Ward said until
he reviewed the video. After reviewing the video several times, the Court cannot
discern what Mr. Ward said. Nevertheless, he responded to the waiver request by
leaning back casually, stating something that under the circumstances sounded and
appeared in the video to be an affirmative response, and then calmly began
answering the detective’s questions.

                                               3
      The detective then began the interrogation by discussing Mr. Ward’s recent
marriage and other routine matters. He then asked Mr. Ward questions regarding
the circumstances surrounding his arrest,2 such as where and when he was arrested.
The detective then told Mr. Ward that a gun was found in the home and asked about
it. Mr. Ward readily answered the detective’s questions about the firearm, confirmed
that it was his, where it was found, and its caliber. He further stated that he just
obtained the firearm, that is was for his protection, and that it had not been used for
any murders.3
      The detective then steered the questioning toward the homicide:
                    Detective: You just got it?
                    Mr. Ward: Protection for me and my
                    cousin.
                    Detective: I’m with you. Well, you
                    wonder why? Because your names
                    are coming up in all this other stuff.
                    Mr. Ward: Everything, my name
                    come up in everything.
                    Detective: Well, do you want to talk
                    about those situations?
                    Mr. Ward: No, there’s probably
                    cameras all in here. I know that.

      At that point, the State concedes that Mr. Ward ambiguously asserted his
Miranda rights. The detective then sought to clarify Mr. Ward’s intent. Namely, he
specifically asked Mr. Ward if he wanted to continue the questioning, and if he did
not, the detective told him he could speak to him in jail at another time. The detective


2
  Mr. Ward has a separate case pending for weapons related charges, which include charges
surrounding the alleged seizure of a firearm not involved in the murder.
3
  The video tape evidences the following exchange:
               Detective: And let me ask you this, this one thing I will ask
               you, is that gun going to come back with any bodies on it?
               Mr. Ward: No.
               Detective: Is it going to come back with nothing?
               Mr. Ward: No, No.
                                               4
then began to leave the room; Mr. Ward, however, stopped him and signaled for him
to come back. At that point, the following exchange took place:
                   Mr. Ward: Let me talk to you.
                   Detective: Alright – what’s that?
                   Mr. Ward: Let me talk to you.
                   Detective: What’s up?
                   Mr. Ward: I’ll wait until you get back.
                   Detective: No, I’m good. What’s up?
                   Mr. Ward: You get my bail down, I’ll talk to you.

      Following this exchange, the detective explained the bail process and
indicated that he could not promise to reduce his bail. The detective told Mr. Ward
that when he had an attorney he could request to speak with him later, or Mr. Ward
could speak to him now to help himself.      At that point, the State conceded in its
written submission that there was a second ambiguous assertion of Mr. Ward’s right
to remain silent. Namely, the next exchange included the following:
                   Detective: What I can tell you is that if you get an
                   attorney, when you get an attorney, you want to
                   come talk and you want to come talk to me, you can
                   request that. I will go up there and talk to you guys
                   to help yourself out.
                   Mr. Ward: I’m not trying to get quizzed
                                    ...
                   Detective: You can talk to me to help yourself out.
                   Mr. Ward: Nah bro.

      In reviewing the balance of the video and audio recordings, the detective
asked no further clarifying questions. The detective testified that he interpreted the
“Nah bro” response to mean that Mr. Ward did not think he could help himself by
waiting to speak to the detective later, as opposed to meaning that Mr. Ward did not
want to talk to him. After that point, the detective continued questioning Mr. Ward



                                             5
who eventually made incriminating statements on the audio recording, placing
himself at the scene at the time of the shooting.


     General Evidentiary Standards and Relevant Miranda Requirements
       In a suppression hearing involving Miranda issues, the burden is on the State
to show by a preponderance of the evidence that Mr. Ward validly waived his
Miranda rights.4 At a suppression hearing, the Court sits as the finder of fact, and
evaluates the weight of the evidence. 5 As the finder of fact, the Court also evaluates
the credibility of the witnesses and the weight to be given to their testimony as well
as the weight due other evidence submitted at the hearing.
       With regard to the substantive issues raised in the hearing, both the Federal
and Delaware Constitutions protect persons against self-incrimination by prohibiting
the government from compelling a person to be a witness against himself. 6 This
privilege against self-incrimination is the right of a person “to remain silent unless
he chooses to speak in the unfettered exercise of his own will.”7                        Because
investigators exert “inherently compelling pressures” 8 during a custodial
interrogation, authorities must apprise criminal suspects of their Miranda rights
under the Fifth Amendment before questioning them. 9 The right to silence may be
invoked, in any manner, at any time before or during a custodial interrogation. 10 A




4
  Colorado v. Connelly, 479 U.S. 157, 168 (1986); Howard v. State, 458 A.2d 1180, 1183 (Del.
Super. Ct. 1983).
5
  Turner v. State, 957 A.2d 565, 570–71 (Del. 2008).
6
  U.S. CONST. amend. V.; see also DEL. CONST., art. I, § 7 (providing that an accused “shall not be
compelled to give evidence against himself”).
7
  Malloy v. Hogan, 378 U.S. 1, 8 (1964).
8
  See e.g., Thompson v. Keohane, 516 U.S. 99, 107 (1995).
9
  Miranda, 384 U.S. at 471 (1966).
10
   Id at 472.
                                                    6
court will suppress statements gathered during an interrogation that is continued
despite a defendant invoking his right to silence.11
       A defendant may waive his Miranda rights if he does so knowingly,
intelligently, and voluntarily. 12 The United States Supreme Court has held that a
court may find an intelligent and knowledgeable waiver of the right to remain silent
without the defendant expressly waiving his right if the suspect impliedly waives his
rights.13   The concept of an implied waiver of Miranda rights has long been
recognized by the Delaware courts as well.14 In the absence of a clear, express
waiver, the validity of an allegedly implied waiver of a suspect’s Miranda rights
depends on the totality of the circumstances.15 An examination of the totality of the
circumstances requires the Court to consider a number of factors, including the
behavior of the detective, Mr. Ward’s conduct, his age, his experience, his
intelligence, and all other pertinent factors. 16
       In Hubbard v. State, the Delaware Supreme Court adopted the United States
Supreme Court’s two-part test to determine whether a suspect has effectively waived
his Fifth Amendment Miranda rights, as follows:
       [f]irst, the relinquishment of the right must have been voluntary in the
       sense that it was the product of a free and deliberate choice rather than
       intimidation, coercion, or deception. 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. Only if
       the “totality of the circumstances surrounding the interrogation” reveal
11
   See Dodson v. State, 513 A.2d 761, 763 (Del.1986) (“The right to remain silent is a constitutional
right ... [c]onsequently, when a defendant invokes his right to silence, the police may not initiate
continued interrogation on the crimes at issue.”) (citing Edwards v. Arizona, 451 U.S. 477, 484
(1981)).
12
   Garvey v. State, 873 A.2d 291, 296 (Del. 2005).
13
   North Carolina v. Butler, 411 U.S. 369 (1979); Berghuis v. Thompkins, 560 U.S. 370 (2010).
14
   See Hooks v. State, 41 A.2d 189, 200 (Del.1980) (“The absence of an express waiver does not
necessarily render a confession inadmissible ...”); see also Bennett v. State, 992 A.2d 1236, 2010
WL 987025, at *3 (Del. 2010) (TABLE) (recognizing that the concept of implied waiver of
Miranda rights has been recognized in Delaware for several decades.”).
15
   Bennett, 2010 WL 987025, at *3.
16
   Wahlen v. State, 434 A.2d 1346, 1351 (Del. Super. Ct. 1980).
                                                     7
      both an uncoerced choice and the requisite level of comprehension may
      a court properly conclude that the Miranda rights have been waived. 17
It is this test that the Court must apply.



 Mr. Ward’s words, conduct, and demeanor demonstrate under the totality of
      the circumstances that he voluntarily waived his Miranda rights.

      Mr. Ward asserts that he did not waive his Miranda rights, and emphasizes
several circumstances in support of his argument. First, he argues that the video
recording does not reflect how he responded when the interviewing detective asked
him if he understood the rights that were just read to him. Furthermore, Mr. Ward
asserts that the video does not demonstrate that he expressly waived his Miranda
rights notwithstanding the detective’s testimony that he did. He also argues that the
detective’s questions confused him by changing topics.
      At the outset, the Court finds the first prong articulated in Hubbard to be
satisfied. There is no evidence that the detective or any other officer influenced Mr.
Ward’s waiver through the use of intimidation, coercion, or deception. Although
they spoke over each other at some points during the interview, the detective did not
attempt to coerce or intimidate Mr. Ward in any way.               To the contrary, the
interrogation began as relaxed and friendly and remained so from the administration
of Mr. Ward’s rights through the beginning portion of the questioning.                The
detective, a high school basketball teammate of Mr. Ward’s, obviously put Mr. Ward
at ease. Mr. Ward did not appear to be apprehensive and his choice to participate in
the interview was free and deliberate.
      Furthermore, the detective testified, and the video portion of the interview
confirms, that the detective clearly and correctly read Mr. Ward his Miranda


17
  Hubbard v. State, 16 A.3d 912, 917 (Del. 2011)(citing Moran v. Burbine, 475 U.S. 412, 421
(1986)).
                                                8
warnings.       Mr. Ward argues that there was no clear acknowledgement by him that
he understood his rights. The Court finds differently. The detective testified at the
hearing that Mr. Ward nodded, thereby confirming he understood his rights after the
detective read them. The Court has also carefully reviewed the video several times
and observed Mr. Ward nod affirmatively in direct response to that question.
          Upon a thorough and careful review of the record, the Court also finds by a
preponderance of the evidence that Mr. Ward expressly waived his Miranda rights.
The detective testified that when he asked Mr. Ward “do you wish to speak to me
now,” Mr. Ward stated “oh yea.” The Court reviewed that specific portion of the
video several times as well. Although Mr. Ward did not speak loudly enough to be
heard clearly on the video recording, his body language (stretching and leaning
casually back in his chair), the tone of his response (although his exact words were
inaudible on the tape), and the fact that he then immediately started answering
questions in a casual manner, support the fact that he expressly waived his Miranda
rights. Given the detective’s testimony at the hearing that Mr. Ward expressly
waived his rights, these corroborating facts support such a finding. Furthermore, the
fact that the detective was closer to Mr. Ward than the microphone is a reasonable
explanation for the difference in the taped evidence versus the detective’s in-court
recollection.
          Moreover, in the alternative, under the totality of the circumstances, the Court
finds that Mr. Ward also impliedly waived his Miranda rights through his words and
conduct. In the “clear absence of an express waiver, the validity of [a defendant’s]
waiver of [his] Miranda rights depends the a ‘totality of the circumstances’ . . ..”18
While a waiver must include affirmative conduct and silence alone is not enough, a
waiver can be inferred from the combination of a suspect’s words and conduct. 19 In


18
     Rambo v. State, 923 A.2d 1275, 1279 (Del. 2007).
19
     North Carolina v. Butler, 441 U.S. 369, 373 (1979).
                                                     9
this regard, the United States Supreme Court in North Carolina v. Butler recognized
that “silence, coupled with an understanding of rights and a course of conduct
indicating waiver may demonstrate that the suspect has waived his rights.”20
       Here, the same factors that corroborate the detective’s testimony regarding
express waiver compel a finding by a preponderance of the evidence that Mr. Ward
alternatively impliedly waived his Miranda rights. In viewing the video,
immediately after Mr. Ward affirmatively nodded after receiving his rights, Mr.
Ward casually stretched and leaned back in his chair. After saying something, which
clearly were not words of protest, he began casually and immediately answering the
detective’s questions. As recognized by the Delaware Supreme Court in Bennett v.
State, the time between when an officer administers rights and the start of
questioning is an important factor in the totality of the circumstances. 21 The close
temporal proximity between the advisement of the rights and the start of questioning
strongly support that Mr. Ward knowingly, intelligently, and voluntarily waived his
Miranda rights.
       Furthermore, later in the interview, Mr. Ward attempted to place conditions
on his willingness to continue answering questions. Namely, he made the statement
after saying “let me talk to you”, that “you get my bail down, I’ll talk to you.”        22
                                                                                              As
the Delaware Supreme Court has recognized, placing conditions upon continuing to
answer questions is another factor supporting the finding of an implied waiver by
conduct. Namely, in Garvey v. State, the Delaware Supreme Court addressed the
relevance of an attempted conditional waiver in a similar context as follows:
       [t]he phrase “depends on what you ask me,” even without any context,
       indicates a contingency of some sort. It implies that the speaker will
       decide whether he will or will not respond based on the conduct or

20
   Id. at 373.
21
   Bennett, 2010 WL 987023, at *2.
22
   He sought these conditions, however, before the point when he ambiguously asserted his rights
on the second occasion.
                                                  10
       speech of another. Through this prospective decision making, the
       speaker necessarily must understand the import of the original request.
       Otherwise, the speaker could not have responded with a contingent
       phrase in the first place. In the custodial interrogation setting, this type
       of response to an investigating officer’s Miranda inquiry demonstrates
       that the speaker heard and understood his rights. 23

In Mr. Ward’s case, the Court finds that even in the arguable absence of an express
waiver, the evidence of record compels an alternative finding that Mr. Ward
impliedly waived his Miranda rights under the totality of the circumstances.


Mr. Ward ambiguously invoked his Miranda rights twice, and after the second
 time, the detective did not ask clarifying questions about Mr. Ward’s intent
                   before continuing with the interrogation.

       Under the Delaware Constitution, unlike its federal counterpart, if a suspect
attempts to invoke his Miranda rights during an interrogation, but does not do so
unequivocally, the police must clarify the suspects intention before continuing with
the interrogation. 24     Where a defendant unambiguously waives (and does not
reassert) his right to silence, interrogating officers need not ask clarifying follow-up
questions. 25 However, when a suspect ambiguously asserts his or her rights during
questioning, a different approach is required. 26 If the suspect conveys that he or she
wants to terminate the interrogation, the interrogating officer must scrupulously
honor the suspect’s right to terminate it.27 Whether a statement is an ambiguous




23
   Garvey, 873 A.2d at 298–99 (emphasis added).
24
   Garvey, 873 A.2d at 296 (citing Norcross v. State, 816 A.2d 757, 762 (Del. 2002)).
25
   Ploof v. State, 856 A.2d 539, 547 (Del. 2004) (“[Ploof’s] statement was not ambiguous and,
therefore, the police were not required to seek further clarification of his intent before proceeding
to question him”).
26
   Crawford v. State, 580 A.2d 571, 574-76 (Del. 1990).
27
   Michigan v. Mosley, 423 U.S. 96, 104 (1975).
                                                     11
invocation of the right to silence is determined on a case-by-case basis, analyzing
the totality of the circumstances. 28
       In the event that a suspect ambiguously asserts his or her rights, an interviewer
may clarify a defendant's intention through various means, including repeating
Miranda warnings; however, the attempts must not be coercive. 29 Custodial
interrogations are inherently persuasive, and because the speaker's true intent is often
unknown, the clarification of ambiguity is vital to safeguarding the values embedded
in the Fifth Amendment right to silence and the Sixth Amendment right to counsel. 30
       Mr. Ward asserts that his statements must be suppressed because he
ambiguously invoked his Miranda rights, and that the detective failed to clarify his
intent before continuing with the custodial interrogation. The Court finds, and the
State concedes, that Mr. Ward ambiguously asserted his right to remain silent at two
points in the questioning.
       First, Mr. Ward at one point answered the detective’s question “well, do you
want to talk about those situations”, with “no, there probably are cameras all in here.”
After the detective indicated he was prepared to terminate the interview, Mr. Ward
twice stated “let me talk to you” and “you get my bail down, I’ll talk to you.” These
unsolicited statements by Mr. Ward, in the context of an already valid waiver,
clarified his intent to continue.
       Soon thereafter in the interview, however, there was a different situation.
Namely, Mr. Ward, after a discussion about bail, stated “I’m not trying to get
quizzed.” The detective then stated “you can talk to me to help yourself out,” but
Mr. Ward responded “nah bro.” The State concedes in its supplemental written
submission that this was a second ambiguous assertion of his rights. The Court,
likewise, finds it to have been an ambiguous invocation.

28
   Garvey, 873 A.2d at 297.
29
   Crawford, 580 A.2d 571 at 577.
30
   Garvey, 873 A.2d at 296.
                                              12
       In response, however, the State points to no attempts by the detective to seek
clarification; nor does the Court find any in either the video or audio segments.
Rather, the State argues sufficient clarification through the detective’s previous
efforts to clarify Mr. Ward’s intent prior to the second ambiguous invocation.
Namely, the detective essentially ignored the second ambiguous invocation, and
instead resumed questioning as if he was addressing Mr. Ward’s prior concern
regarding cameras in the room.
       The detective did not testify at the hearing regarding any attempts he made to
clarify Mr. Ward’s intent after this second ambiguous invocation. With regard to
the portion following the “nah bro” comment, the detective testified only that he
interpreted Mr. Ward’s statement “nah bro” to mean that Mr. Ward did not want to
delay talking to the detective because that would not help Mr. Ward’s case. Under
the totality of the circumstances, Mr. Ward’s response generates two competing
inferences regarding his intent: (1) one consistent with the detective’s subjective
interpretation of Mr. Ward’s intent to continue to talk because Mr. Ward did not
think waiting would benefit him; and (2) one completely consistent with Mr. Ward’s
intent to discontinue the interrogation.
       Delaware’s “clarification approach” required the detective to limit his
questions after this second ambiguous invocation to those designed to clear up the
ambiguity. 31     Only at that point may the substantive questioning continue.
Otherwise, defendant’s right to remain silent must be “scrupulously honored” by the
interrogating officer. 32 Here, because the State references no attempts to clarify a
direct response of “nah bro” in response to “you can talk to me to help yourself out,”
the Court finds that the questioning should have ceased at that point.



31
   See Crawford, 580 A.2d at 575 (discussing the approach in the separate but parallel context of
an ambiguous request for counsel).
32
   Dodson, 513 A.2d at 763 (Del. 1986).
                                                   13
        Finally, although not raised by the State, the Court notes that at the beginning
of the second segment (audio only), the detective stated “you said you wanted to talk
to me outside, outside the room.” The evidence at the hearing, however, did not
establish that Mr. Ward stated this; nor did any recorded statements in evidence
include such a request from Mr. Ward. The two recorded segments overlapped and
the Court reviewed the continuous record. The recordings evidence that Mr. Ward’s
only relevant response to that statement was “you’re wasting my time, bro.” The
Court cannot properly find based on the evidence at the hearing that the detective
clarified the ambiguity before proceeding with the substantive questioning.
        Under the totality of the circumstances, the assertion of Mr. Ward’s rights on
this second occasion was ambiguous and the detective did not ask any, much less
reasonably sufficient clarifying questions, to resolve the ambiguity. As a result, all
statements made after Mr. Ward’s response “nah bro” must be suppressed from use
at trial.


                                      IV.    Conclusion
        For the reasons set forth above, Mr. Ward waived his Miranda rights during
his custodial interrogation with the detective.         After his second ambiguous
invocation of his rights, however, the detective sought no clarification regarding Mr.
Ward’s intent. As a result, any statements made after that point are suppressed from
use at trial. Mr. Ward’s motion to suppress is accordingly GRANTED, IN PART
and DENIED, IN PART.
        IT IS SO ORDERED


                                                             /s/Jeffrey J Clark
                                                                    Judge



                                               14
