600	                      December 26, 2014	                       No. 74

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                   Petitioner on Review,
                             v.
                  CELSO AVILA-NAVA,
                  Respondent on Review.
         (CC C092845CR; CA A146527; SC S061802)

   En Banc
   On review from the Court of Appeals*
   Argued and submitted September 15, 2014.
    Peenesh Shah, Assistant Attorney General, Department
of Justice, Salem, argued the case and filed the brief for the
petitioner on review. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Anna M. Joyce, Solicitor
General.
   Jed Peterson, O’Connor Weber, LLP, Portland, argued
the case and filed the brief for the petitioner on review.
   BREWER, J.
   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
   Kistler, J., filed an opinion concurring in part and con-
curring in the judgment, in which Linder, J., joined.




______________
	  *  Appeal from Washington County Circuit Court, Rick Knapp, Judge. 257 Or
App 364, 306 P3d 752 (2013).
Cite as 356 Or 600 (2014)	601

    The state sought review of a decision of the Court of Appeals reversing the
judgment of the circuit court because a police officer’s continued questioning
of defendant after he unequivocally invoked his right to remain silent had vio-
lated defendant’s rights under Article I, section 12, of the Oregon Constitution.
Defendant, a suspect in a robbery, was arrested and brought to a police station
where he was given Miranda warnings by an officer. After the officer read the
warnings to defendant, defendant asked questions about the warnings and, at
one point, defendant said “I won’t answer any questions.” The detective believed
that that statement indicated confusion on defendant’s part about the warnings,
and he asked if defendant meant that he did not want to talk to the officer and
wanted the officer to leave. The conversation continued, and defendant ultimately
made incriminating statements. Prior to trial, the state sought to admit those
statements. The trial court concluded that the officer had not violated defendant’s
rights under Article I, section 12, because defendant’s statement was not an
unequivocal invocation of his right to remain silent. Defendant appealed, and the
Court of Appeals reversed. The state sought review. Held: (1) Defendant’s words
“I won’t answer any questions” appeared on their face unequivocally to invoke his
right against self-incrimination; (2) in deciding whether a defendant’s words con-
stituted an unequivocal invocation of the right against self-incrimination under
Article I, section 12, a reviewing court must consider those words in the context
of the totality of circumstances existing at and preceding the time they were
uttered, to determine whether a reasonable officer would have understood that
the defendant was invoking that right; and (3) because there was no evidence pre-
ceding or contemporaneous with the invocation to support the trial court’s con-
clusion that defendant failed to unequivocally invoke his right to remain silent,
defendant’s incriminating statements should have been suppressed.
    The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
602	                                                 State v. Avila-Nava

	          BREWER, J.
	        Under Article I, section 12, of the Oregon Consti-
tution, police must cease custodial interrogation when a
criminal suspect unequivocally invokes his or her right
against self-incrimination. State v. McAnulty, 356 Or 432,
455, __ P3d __ (2014); State v. Davis, 350 Or 440, 459, 256
P3d 1075 (2011). This case raises the broader question of
what standard applies to determine whether an unequiv-
ocal invocation of the right against self-incrimination was
made and the particular question of whether, in the con-
text in which they were communicated, defendant’s words,
“I won’t answer any questions,” constituted an unequivocal
invocation of that right. The trial court found, in light of
contextual indicia on which it relied, that defendant’s words
did not amount to an unequivocal invocation and denied his
motion to suppress. The Court of Appeals reversed that rul-
ing and remanded to the trial court. State v. Avila-Nava, 257
Or App 364, 306 P3d 752 (2013). Having allowed review, we
affirm the Court of Appeals decision and remand this case
to the trial court for further proceedings.
            FACTS AND PROCEDURAL HISTORY
	         The pertinent facts are undisputed. Hillsboro police
officers, who were investigating a robbery for which defen-
dant was a wanted suspect, stopped a vehicle that defen-
dant was driving. Defendant was arrested, handcuffed, and
taken into police custody. At the scene of arrest, an officer
read the Miranda warnings to him from a prepared card
that had the warnings, in Spanish, printed on it.1 The offi-
cer read the warnings in Spanish because defendant had
indicated that he did not speak English. After the officer
read the warnings, defendant stated that he understood his
rights. Officers then transported defendant to the Hillsboro
Police Department.

	1
      In Miranda v. Arizona, 384 US 436, 444, 86 S Ct 1602, 16 L Ed 2d 694
(1966), the Supreme Court held that the Fifth Amendment to the United States
Constitution requires particular warnings be given when “a person has been
taken into custody or otherwise deprived of his freedom in any significant way.”
Those warnings are that a person “has a right to remain silent, that any state-
ment he does make may be used as evidence against him, and that he has the
right to the presence of an attorney, either retained or appointed.” Id. at 444.
Cite as 356 Or 600 (2014)	603

	        At the police station, Detectives Ganete and Hahn
interviewed defendant. Ganete spoke Spanish throughout
his interaction with defendant. Ganete testified that he had
no trouble understanding defendant and that defendant
did not appear to have difficulty understanding his ques-
tions. Ganete testified that he read the Miranda warnings
to defendant, from a prepared card that stated (translated
from Spanish):
    	 “It is my [duty] to inform you before you make a declara-
    tion that you have the right to remain silent.
    	 “Anything you say may be used against you in a court of
    law or a judicial tribunal.
    	 “You have the right to speak to an attorney and to be
    [sic] 2 present during the interrogation.
    	 “If you do not have the funds to contract an attorney, the
    court will assign one to you without cost.”
	        Ganete then asked defendant whether he under-
stood those rights. Defendant replied: “I have a question. Do
I have to answer your questions?” Ganete responded that
defendant “did not have to answer any questions or talk to
me if he chose to.” Defendant then asked Ganete “why did
mister call the police?” In response, Ganete told defendant
that “we needed to get past first his understanding of the
Miranda warning before we can actually begin to speak
with each other.” Ganete then stated that defendant had to
decide whether to talk to him or not, and Ganete read the
Miranda warning card again. Ganete “took each right line
by line and asked if [defendant] understood each right, and
he understood the rights with the exception of * * * where
he questioned anything you say may be used against you in
a court of law.” After Ganete read that warning, defendant
said “I don’t understand what this means.” Ganete asked
“what is it you don’t understand,” and defendant replied,
“anything I say can be used against me.” Ganete said, “that’s
correct. Anything you say can be used against you.” At that
point, defendant stated: “I won’t answer any questions.”

	2
       As noted above, the right to counsel includes the right to have an attorney
present during police interrogation. Defendant does not assert that any ambigu-
ity or error in Ganete’s recital of that right is pertinent here.
604	                                           State v. Avila-Nava

	          Ganete then asked if defendant meant that he
did not want to talk to Ganete and that he wanted him
to leave. Defendant responded, “No, I can’t talk to you if I
don’t understand what this right means because you’re tell-
ing me I have the right to remain silent. I don’t understand
what this right means.” At that point, Ganete again read
the warning that “anything you say may be used against
you.” As he was doing so, defendant interrupted him and
said, “pardon. I’m not trying to be disrespectful. How can I
say this?” Defendant paused before saying, “[a]nything I say
can be used against me. It’s like I’m lying?” Ganete charac-
terized that question as “more like [defendant] was doubt-
ful of understanding what it meant and interpreting it as
‘well, it’s like I’m lying then.’ ” Ganete proceeded to reiterate
the warnings, because “we were kind of hung up in this—
on this right * * * because we were at this point where we
weren’t making any progress of understanding; so I thought
that, ‘Okay. We’ll come back to that right afterwards and
see if he would understand then.’ ”

	       After repeating the Miranda warnings, Ganete
asked defendant if he understood them, with the exception
of the warning that anything that he said could be used
against him. Defendant replied: “That’s exactly what I don’t
understand.” Ganete
   “then asked [defendant] if—how many—how many years
   of schooling did he have, and he mentioned he had up to
   sixth grade. I asked if he knew how to read Spanish, and
   he said, ‘yes, a little bit.’ And then I suggested, I says, ‘If I
   show you the Miranda rights card, are you able to read and
   understand?’ And he said, ‘yes, I can.’ ”

Ganete then gave the Miranda card to defendant, who read
the warnings out loud. After defendant finished reading the
card, Ganete said:
   “ ‘It’s my duty to inform you before you make a declaration,’
   you have the right to remain silent.’ [Defendant] pauses
   and asks us a question, ‘You can—you can just ask me ques-
   tions then?’, and I replied, ‘If I tell—if you tell me that you
   wish to remain silent, I can’t question you.” [Defendant]
   then said, ‘Now, I understand’.
Cite as 356 Or 600 (2014)	605

  	 “I then explained to [defendant] we needed to establish
  if he wants to speak with me or not, which is a lot different
  than if he agrees to speak with me.
  	 “However, during my questioning, he may choose to
  answer or not answer specific questions, and that was fine
  with me.
  	 “Finally, I asked [defendant] ‘Do you understand your
  rights?’ And he said ‘Yes,’ and then I asked, ‘Do you under-
  stand the Miranda warning card you read?’ He, [defen-
  dant] said, ‘Yes,’ and I asked ‘Do you want to speak with
  me freely?’ [Defendant] said, ‘Yes.’ ”
	       Before Ganete concluded his testimony, the trial
court engaged him in the following colloquy:
  	 “[The Court]:  I’m a little confused. He said at one point
  that I won’t answer any questions, and then it seems pretty
  unequivocal. Why did you continue?
  	 “[Ganete]:  Because I asked at one point ‘are you say-
  ing you don’t want to talk to me at all? You just want me to
  go away?’ And his expression was, ‘no I can’t talk to you if I
  don’t understand what this right means because you’re tell-
  ing me I have the right to remain silent. I don’t understand
  what this means.’
  	 “So, your honor, I guess to clarify this, I—my under-
  standing is that he wasn’t understanding that right, and I
  made every effort to explain to him what that meant and
  this was our going back and forth until he finally said, ‘Oh,
  I see what you’re telling me. Okay. Under that condition,
  then I want to talk to you. I understand what that right
  means.’
  	 “[The Court]:  So when he said to you, ‘I won’t answer
  any questions,’ that was phrased to you as a not a state-
  ment of—did you receive that as a statement where he was
  unequivocally exercising his rights not to talk to you, or
  was that a question he was pondering to you?
  	 “[Ganete]:  I interpreted it as a question that he was
  pondering to me from lack of understanding. I didn’t accept
  that as unequivocally, he’s saying, ‘I don’t want to talk to
  you.’ ”
	      Defendant’s counsel argued at the suppression
hearing that, when defendant said “I won’t answer any
606	                                       State v. Avila-Nava

questions,” Ganete was required to terminate the interroga-
tion, because those words have the same effect as “I choose
to remain silent” and “I won’t talk to you.” The prosecutor
responded that defendant had not unequivocally invoked his
right against self-incrimination and that Ganete’s continued
questioning was meant to ensure that defendant understood
his rights. Because defendant indicated that he understood
those rights before he made incriminating statements, the
prosecutor reasoned, defendant had validly waived his right
against self-incrimination.
	       The trial court denied defendant’s motion to sup-
press. The court explained:
  	 “[T]he court’s responsibility is to look at the totality
  of the facts surrounding the Miranda issue, and when
  you first—so there was this discussion that was going
  on between Officer Ganete and the defendant, and they
  started getting hung up on this one right that anything
  you say can be used against you in a court and wasn’t sure
  what that was all about. And then the defendant says, ‘I
  won’t answer any questions,’ and, you know, when you first
  hear that, you think that it’s a unequivocal exercise of his
  Miranda rights, and it should be shut down at that point.
  	 “But Officer Ganete took great effort to try to explain
  to the court that it—it wasn’t that he was exercising his
  rights. He wasn’t saying ‘I won’t answer any questions.’ It
  was that he didn’t know if he wasn’t supposed to answer
  any questions or not, and so there’s this—he was—it was
  apparent that the defendant was confused about what his
  rights were, and that’s later cleared up before defendant
  says, ‘Okay. Now I understand.’
  	 “And so I at first thought it was actually an unequivocal
  exercise of his Miranda rights, but it was clear that that
  was—is not the case even though he did say, ‘I won’t answer
  any questions.’ But it was posed more of a—as a quandary.
  The defendant didn’t quite understand what was going on
  at the time.
  	 “I’m supposed to look at the totality of the facts to try
  and understand this to make sure that the statements
  were voluntary, first of all, and it’s real clear that there
  were no threats. There wasn’t any coercion. There were
  no promises, no trickery, no fraud, no intoxication. He was
Cite as 356 Or 600 (2014)	607

   confused initially, which is the biggest hurdle that they
   have—that the police have at the time to allow the state-
   ments for him to be voluntary. He’s got to understand these
   obviously at least the Miranda rights and so forth, but they
   seem to be—they work through it, and the officer spent a
   lot of time with the defendant making sure he understood
   his Miranda rights. I don’t believe under the totality of the
   facts that I heard that he was trying to manipulate the
   defendant in the situation.
   	 “So then the next question is—so I do think the state-
   ments that he made subsequently were voluntary. I haven’t
   heard the statements, but I’m assuming that they will be.
   The question is then did the defendant waive his Miranda
   rights or was this comment, ‘won’t answer any questions,’
   an unequivocal exercise of his Miranda rights, and that’s
   where I say I think the—in the totality of the facts that
   it’s not unequivocal exercise of rights. He’s trying to under-
   stand what his rights are, and that’s what we want the
   police to do when someone’s not quite understanding it to
   explain it in detail so that they—so when it’s all over with,
   and the person understands his rights, he can then say,
   ‘No, I don’t want to talk to you. I won’t answer any ques-
   tions. Or yeah, I’ll talk to you.’ And, apparently, after he
   understood his rights, he did decide to talk to the police.
   	 “So from the totality of the circumstances, I do find
   that he voluntarily and knowingly waived his Miranda
   rights. It’s a bit different than we typically see, but obvi-
   ously, there was a Spanish speaking issue here that they
   had to work through in terms of the Miranda rights. And
   obviously, the Miranda rights aren’t really clearly inter-
   preted from English into Spanish anyway, and so you can
   see where there’s a process that has to take place where
   these rights are explained in detail to someone who doesn’t
   speak English to be able to make sure that they clearly
   understand, and I do think he clearly understood what his
   Miranda rights were. So I will allow the statements to come
   in.”
	       Defendant testified at trial, and the state impeached
him by pointing to inconsistencies between his trial testi-
mony and his statements during interrogation. As the case
was tried, an assessment of defendant’s credibility was
essential to the jury’s consideration of the charges against
him. The jury convicted defendant, and this appeal followed.
608	                                         State v. Avila-Nava

                          ANALYSIS
	         Article I, section 12, of the Oregon Constitution
provides that “[n]o person shall be * * * compelled in any
criminal prosecution to testify against himself.” To protect
a person’s right against compelled self-incrimination under
that provision, this court has held that, before questioning,
the police must give Miranda warnings to a person who is
in “full custody” or in circumstances that “create a setting
which judges would and officers should recognize to be ‘com-
pelling.’ ” State v. Jarnagin, 351 Or 703, 713, 277 P3d 535
(2012); State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990). When
an officer fails to give the requisite warnings, a court must
suppress not only the statements that a suspect makes in
direct response to unwarned questioning but also evidence
that derives from or is a product of that constitutional viola-
tion. State v. Vondehn, 348 Or 462, 476, 236 P3d 691 (2010).
	In Vondehn, this court examined the basis for the
requirement that police inform people in custody of their
right against self-incrimination under Article I, section 12.
The court explained that,
   “[b]ecause a custodial interrogation is inherently compel-
   ling, and to ensure the validity of a waiver of the right
   against self-incrimination, Article I, section 12, requires
   that the police inform a person subjected to custodial inter-
   rogation that he or she has a right to remain silent and
   to consult with counsel and that any statements that the
   person makes may be used against the person in a criminal
   prosecution. Article I, section 12, requires those Miranda
   warnings to ensure that a person’s waiver is knowing as
   well as voluntary. If the police conduct a custodial inter-
   rogation without first obtaining a knowing and voluntary
   waiver of the suspect’s rights, then they violate the sus-
   pect’s Article I, section 12, rights.”

348 Or at 474; see also State v. Roble-Baker, 340 Or 631,
638, 136 P3d 22 (2006) (“To protect a person’s right against
compelled self-incrimination under [Article I, section 12],
this court has held that, before questioning, police must give
Miranda warnings to a person who is in ‘full custody’ or in
circumstances that ‘create a setting which judges would and
officers should recognize to be ‘compelling’ ”).
Cite as 356 Or 600 (2014)	609

	        As noted, under Article I, section 12, police must
cease interrogation when a person in police custody
unequivocally invokes the right against self-incrimination.
McAnulty, 356 Or at 455. The reason for that requirement
is that,”[w]hen the police honor [a defendant’s rights under
Article I, section 12], if [the] defendant chooses to assert
them, the coercive atmosphere of police interrogation is to
some degree dispelled.” State v. Sparklin, 296 Or 85, 89, 672
P2d 1182 (1983). When the defendant makes an ambigu-
ous or equivocal invocation of rights under Article I, sec-
tion 12, however, the police are required to ask follow-up
questions to clarify what the person meant before proceed-
ing with interrogation. State v. Charboneau, 323 Or 38, 54,
913 P2d 308 (1996).3 In determining whether the defendant
unequivocally invoked his or her rights, “interpretation is
only required where the defendant’s words, understood as
ordinary people would understand them, are ambiguous.”
Connecticut v. Barrett, 479 US 523, 529, 107 S Ct 828, 93
L Ed 2d 920 (1987); accord State v. Kell, 303 Or 89, 99, 734
P2d 334 (1987).4
	         What transpired during a custodial interrogation,
including what a defendant said or did not say, is a question
of fact. We are bound by the trial court’s findings of fact
if they are supported by evidence in the record, although
“we assess anew whether th[ose] facts suffice to meet con-
stitutional standards.” State v. James, 339 Or 476, 481, 123
P3d 251 (2005). That is, whether a defendant’s statements
amounted to an unequivocal invocation of the right against
self-incrimination, an equivocal invocation, or no invocation
at all, is a question of law. State v. Terry, 333 Or 163, 172, 37
P3d 157 (2001), cert den, 536 US 910 (2002).
	         As the trial court in this case acknowledged, defen-
dant’s statement, “I won’t answer any questions” appeared
on its face to be an unequivocal assertion of his right against

	3
       Unlike Article I, section 12, the Fifth Amendment does not obligate officers
to ask clarifying questions regarding a suspect’s intent in making an equivocal
invocation. Davis v. United States, 512 US 452, 461, 114 S Ct 2350, 129 L Ed 2d
362 (1994).
	4
       When a person unequivocally invokes her right against self-incrimination,
police may reinitiate contact after a reasonable time, provide new Miranda warn-
ings, and obtain a valid waiver. McAnulty, 356 Or at 458.
610	                                      State v. Avila-Nava

self-incrimination. The question is whether the trial court
nevertheless properly determined that the statement was
equivocal. Because it is central to our analysis, we first con-
sider an issue that this court previously has not directly
addressed under Article I, section 12, namely, whether in
determining if a suspect in police custody has unequivocally
invoked his or her right against self-incrimination, a court
can consider a suspect’s post-request responses to further
police questions.
	        This court must independently analyze the mean-
ing, scope, and requirements of Article I, section 12, just
like any other provision of the Oregon Constitution. See, e.g.,
State v. Caraher, 293 Or 741, 748, 653 P2d 942 (1982) (stat-
ing principle). When construing a provision of the original
Oregon Constitution (and Article I, section 12, is such a pro-
vision), we examine the text in its context, the historical
circumstances of the adoption of the provision, and the case
law that has construed it. Priest v. Pearce, 314 Or 411, 415–
16, 840 P2d 65 (1992). Insofar as the issue at hand is con-
cerned, the text in context and historical circumstances of
the adoption of Article I, section 12, do not assist our analy-
sis. However, our previous decisions construing Article I,
section 12, do provide some guidance.
	In State v. Smith, 310 Or 1, 791 P2d 836 (1990), the
defendant argued that he had invoked his rights against
self-incrimination under Article I, section 12, and under the
Fifth Amendment, when, during a police interview, he said,
“I have nothing to say” in response to a detective’s hypo-
thetical description of how he might have killed his wife.
Based on the context in which the remark was made, the
trial court concluded that the defendant had not invoked
his right against self-incrimination, but, instead, merely
had exercised his right to answer some questions and not
to answer others. See Kell, 303 Or at 99 (“Defendant was
entitled to pick and choose what he wished to talk about.”).
This court agreed with the trial court’s conclusion, because
it found “ ‘nothing which suggests that detectives persisted
in repeated efforts to wear down [the defendant’s] resis-
tance and make him change his mind.’ ” Smith, 310 Or at
10 (quoting State v. Foster, 288 Or 649, 656, 607 P2d 173
Cite as 356 Or 600 (2014)	611

(1980)).5 In so concluding, the court analyzed the defendant’s
words in the context in which they were uttered, including
the preceding circumstances.
	       Later, in Charboneau, a case involving the asserted
invocation of the right to counsel under Article I, section 12,6
the defendant sought to exclude inculpatory statements that
he made after he asked, “Will I have an opportunity to call
an attorney tonight?” 323 Or at 52. This court concluded
that any request for counsel was equivocal:
    “In the totality of the circumstances, defendant’s question
    simply does not constitute, as a matter of law, an unequiv-
    ocal request for a lawyer. For example: (1) Defendant did
    not say that he wished to speak with a lawyer at the time;
    rather, he asked about the future. (2) Even regarding the
    future, defendant’s statement did not say that he necessar-
    ily would want to speak with a lawyer; he asked only if he
    would have an opportunity to speak with a lawyer later.
    Although no single characteristic is controlling, defendant’s
    statement, when considered in its entirety, readily suggests
    that he was not invoking his right to speak to a lawyer at
    that time but might do so later.”
Id. at 55 (emphases added). Thus, like in Smith, the court in
Charboneau analyzed the defendant’s words in the context
in which they were uttered, this time expressly considering
“the totality of circumstances.”
	         Most recently, in McAnulty, we held that the defen-
dant twice had invoked her right to remain silent when she
“unambiguously communicated that she no longer desired
to talk with detectives.” 356 Or at 456. We also concluded,
based on the context of her preceding interactions with the
officers, that the defendant later invoked that right a third
time by stating, “I don’t want to no more, please, I don’t want
to.” Id. at 452. The state had maintained that the defendant,
	5
       The court did not engage in a separate analysis of each constitutional provi-
sion but, rather, applied the same reasoning to both Article I, section 12, and the
Fifth Amendment.
	6
       The right to counsel derives from two separate provisions in the Oregon
Constitution—Article I, section 11, and Article I, section 12. The right to counsel
recognized by Article I, section 12, is an adjunct to a defendant’s state consti-
tutional Miranda right. See State v. Haynes, 288 Or 59, 71, 602 P2d 272 (1979)
(describing Article I, section 12, right to counsel as a “derivative right” to protect
against involuntary confessions).
612	                                                  State v. Avila-Nava

in her third invocation, merely had expressed a desire not
to look at a photograph of the murder victim. We disagreed.
We noted that, before the defendant’s invocation, one of the
officers had acknowledged that he was aware that the defen-
dant did not want to look at anything and assured the defen-
dant that he was “not going to ask [her] to do that.” Id. He
instead told the defendant that he still needed to ask her
about the victim’s injuries. When the defendant then stated,
“I don’t want to no more, please, I don’t want to,” we con-
cluded—based on her words in light of the preceding cir-
cumstances—that she “effectively communicated her intent
to stop the conversation.” Id. at 456.
	        The foregoing decisions, although not expressly
applying it, are consistent with the standard that, in deter-
mining whether an unequivocal invocation of the right
against self-incrimination was made, a court considers the
defendant’s words, in light of the totality of the circumstances
at and preceding the time they were uttered, to ascertain
whether a reasonable officer would have understood that
the defendant was invoking that right. That is the standard
that the United States Supreme Court has adopted under
the Fifth Amendment. Davis, 512 US at 458-59. Under that
standard, “[e]vents preceding the [response]” or “nuances
inherent in the [response] itself” can evince ambiguity and
justify the conclusion that an accused’s response was equiv-
ocal. Smith v. Illinois, 469 US 91, 100, 105 S Ct 490, 495,
83 L Ed 2d 488 (1984). However, “an accused’s post request
responses to further interrogation may not be used to cast
retrospective doubt on the clarity of the initial request itself.”
Id.7

	7
      Some courts applying the Fifth Amendment also have concluded that a
suspect failed to unequivocally invoke the right against self-incrimination when
what might otherwise be deemed to be an unequivocal invocation was immedi-
ately and spontaneously followed by words that were inconsistent with a desire
to remain silent. Thus, for example, courts have concluded that no unequivocal
invocation was made when words expressing a desire to end questioning were
“separated by little more than a breath” from subsequent utterances that would
lead a reasonable officer to doubt whether the defendant in fact wished to do
so. State v. Rogers, 277 Neb 37, 67, 760 NW 2d 35 (2009); see also, e.g., U.S. v.
Stepherson, 152 Fed Appx 904 (11th Cir 2005); State v. Whipple, 134 Idaho 498, 5
P3d 478 (2000); Haviland v. State, 677 NE2d 509 (Ind 1997). The state does not
assert that that principle applies to the factual circumstances of this case and,
therefore, we do not consider that issue.
Cite as 356 Or 600 (2014)	613

	        That standard also comports with the demands of
Article I, section 12. Whether or not custodial interrogation
is actually abusive, this court has recognized that the set-
ting in which it occurs is inherently coercive. Sparklin, 296
Or at 89. As then-Judge Gillette succinctly explained:
    “A person who is in custody is not the master of the situ-
    ation; the police are. Article I, section 12, provides a way
    for a suspect to assert some control over the situation so
    that whatever he does will be the result of a knowing and
    voluntary choice.”
 State v. Rowe, 79 Or App 801, 805, 720 P2d 765, rev den,
302 Or 86 (1986). Where an officer reasonably would under-
stand that a suspect in police custody has unequivocally
invoked his or her right against self-incrimination, further
questioning to confirm that the suspect actually meant to
invoke that right—whether by design or not—can erode the
suspect’s will. To ensure respect for a suspect’s choice, the
rule prohibiting the further questioning of a suspect who
has invoked the right against self-incrimination therefore
should be applied from the perspective of the police officer
who must follow it at the time the officer is to follow it. See
State v. Smith, 301 Or 681, 713, 725 P2d 894 (1986) (Linde,
J., dissenting). That standard has the further advantages
of reducing “difficulties of proof and [providing] guidance to
officers conducting interrogations.” Davis, 512 US at 458-
59. Thus, we conclude that, in determining whether a defen-
dant’s words constituted an unequivocal invocation of the
right against self-incrimination under Article I, section 12,
a reviewing court must consider those words, in the context
of the totality of circumstances existing at the time of and
preceding their utterance, to determine whether a reason-
able officer would have understood that the defendant was
invoking that right.8
	8
       The concurrence is less certain that Article I, section 12, compels the con-
clusion that we reach, although it recognizes that a contrary conclusion would
run afoul of the Fifth Amendment under the Supreme Court’s decision in Smith.
356 Or at 621 (Kistler, J., concurring). For its part, the state does not appear to
argue that Article I, section 12, permits the consideration of post-request circum-
stances. Rather, the state asserts that, under Article I, section 12, a “determina-
tion of a reasonable officer’s understanding of a suspect’s spoken words, under the
totality of the circumstances, must include context.” In support of that argument,
the state relies in part on Medina v. Singletary, 59 F3d 1095, 1104 (11th Cir 1995),
cert den, 517 US 1247 (1996), where, as the state notes, the court “recognize[ed]
614	                                                    State v. Avila-Nava

	        The parties agree that, to determine whether that
standard is met, a court may consider the preceding words
spoken by the defendant and the interrogating officer, the
demeanor, gestures, and speech patterns of the defendant,
the demeanor and tone of the interrogating officer, and the
point at which the defendant allegedly invoked the right to
remain silent. Courts applying the Fifth Amendment have
considered such contextual indicia,9 and we agree that such
indicia also are appropriate considerations in evaluating
whether a defendant’s words amounted to an unequivocal
invocation of the right against self-incrimination under
Article I, section 12.
	        With the foregoing principles in mind, we turn to
the circumstances of this case.
                         APPLICATION
	        The parties agree that, based on their ordinary
meaning, defendant’s words “I won’t answer any ques-
tions,” appeared unequivocally to invoke his right against
self-incrimination. However, they disagree about what, in
context, a reasonable officer would have understood those
words to communicate. As noted, the trial court found as
fact that defendant’s words were “posed” as a “quandary”
and that “defendant didn’t quite understand what was going
on at the time.”10 Based on that finding, the court reached
the legal conclusion that defendant did not unequivocally
invoke his right against self-incrimination. The ultimate
question before us is whether evidence in the record preced-
ing the apparent invocation supported that finding of fact
and legal conclusion. James, 339 Or at 481.
	        The state makes three arguments in defense of the
trial court’s finding of fact and its resulting legal conclusion:

the importance of ‘events preceding the [response]’ or ‘nuances inherent in the
[response] itself.’ ” (Emphasis added).
	9
        See, e.g., Rogers, 277 Neb at 64-5; People v. Arroya, 988 P2d 1124 (Colo
1999); People v. Glover, 661 NE2d 155-56 (NY 1995).
	10
         The word “quandary” can refer either to a “state of perplexity or doubt” or
a “dilemma.” See Webster’s Third New Int’l Dictionary 1859 (unabridged ed 2002).
It is not altogether clear from the trial court’s ruling whether it meant to find
that defendant was unsure about whether to invoke his right to remain silent or,
as the court suggested in its next comment, that defendant was confused about
his rights, or both. However, as explained below, any uncertainty as to the trial
court’s meaning does not ultimately affect our conclusion.
Cite as 356 Or 600 (2014)	615

(1) the finding was supported by Ganete’s testimony that he
interpreted defendant’s words as a question; (2) evidence
of a language barrier between Ganete and defendant also
supported the finding; and (3) the finding was supported
by evidence that defendant either was confused about the
warning that anything he said could be used against him or
was uncertain whether to invoke his right to remain silent.
We address those arguments in order.
	        First, the state asserts that the trial court’s finding
of fact was supported by Detective Ganete’s testimony that
he “interpreted [defendant’s words] as a question that [defen-
dant] was pondering from lack of understanding.” The state
posits that Ganete “genuinely perceived defendant’s words
as a question, presumably due to defendant’s intonation and
demeanor, which [Ganete] may well have mimicked for the
trial court when repeating them in his testimony.” There are
two difficulties with that argument. First, there was no evi-
dence in the record that defendant’s demeanor, gestures, or
tone of voice indicated to Ganete that defendant had posed
a question.11 Second—and in any event—the record shows
that Ganete’s interpretation of defendant’s words was not
based on defendant’s demeanor, gestures, or intonation in
uttering them, but, instead, was based on the substance of
their conversation. When the trial court asked Ganete why,
in light of defendant’s “pretty unequivocal” words, Ganete
“continue[d],” Ganete’s reply was straightforward:
    “Because I asked at one point ‘are you saying you don’t want
    to talk to me at all? You just want me to go away?’ And his
    expression was, ‘no I can’t talk to you if I don’t understand
	11
        The state suggests that the transcriptionist who prepared the trial court
record in this case erroneously punctuated defendant’s words so that they
appeared to be declarative, not interrogative. We reject that assertion. Neither
party attempted to correct the record on appeal in accordance with the applicable
procedure. As such, its contents bind us on review. The record on appeal includes
“the record of oral proceedings,” which “shall be a transcript.” ORAP 3.05(1), (2).
See ORAP 9.20(5) (“The record on review shall consist of the record before the
Court of Appeals.”). The circuit court determines the accuracy of the transcript,
not the parties on appeal or this court. See State v. Acremant, 338 Or 302, 337,
108 P3d 1139 (2005) (“ ‘It is elementary that it is the circuit court, not this court,
which determines the correctness of the transcript which comes to this court on
an appeal.’ ” (quoting Fry v. Ashley, 228 Or 61, 71, 363 P2d 555 (1961)). Although
parties to an appeal may challenge the accuracy of a transcript and either correct
or supplement the record, see ORS 19.365(4); ORS 19.370(6); ORAP 3.40, the
state has not done so in this case.
616	                                         State v. Avila-Nava

   what this right means because you’re telling me I have the
   right to remain silent. I don’t understand what this means.’
   	 “So, your honor, I guess to clarify this, I—my under-
   standing is that he wasn’t understanding that right, and I
   made every effort to explain to him what that meant and
   this was our going back and forth until he finally said, ‘Oh,
   I see what you’re telling me. Okay. Under that condition,
   then I want to talk to you. I understand what that right
   means.”
	        The problem is that, in chronological sequence, the
verbal exchange on which Ganete relied took place after
defendant said “I won’t answer any questions,” and after
Ganete had moved on to a discussion of other rights, not
before. Because Ganete’s answer to the trial court’s question
was based on what transpired after defendant said “I won’t
answer any questions” and after Ganete nevertheless had
continued the interview, the described exchange could not
have informed Ganete’s understanding of defendant’s words
when he uttered them.
	        Second, as noted, the state asserts that a “language
barrier” between Ganete and defendant was an additional
circumstance that supported the trial court’s finding. It is
true that the trial court referred to a language barrier in
making its ruling. However, the only evidence in the record
was that no such barrier existed. As discussed, Ganete tes-
tified that he and defendant were able to understand each
other in Spanish, the language in which they conversed.
Accordingly, that argument does not assist the state either.
	        Third, the state observes that, before defendant
said “I won’t answer any more questions,” he appeared not
to understand “the warning that anything he said could be
used against him.” The state argues that “[d]efendant had
already expressed confusion regarding that warning and his
question was the latest in a series of inquiries or statements
seeking further clarification,” and “[i]n that context, a rea-
sonable officer could not have been certain whether defen-
dant was continuing to seek clarification or whether he was
switching gears and now invoking a right.” We disagree.
	       The state is correct that the warning that “[a]ny-
thing you say may be used against you in a court of law,”
Cite as 356 Or 600 (2014)	617

appeared to confuse defendant. And, it is true that that
warning does refer to a consequence of a suspect’s waiver
of the right against self-incrimination. However, the warn-
ing and the right to remain silent were stated to defendant
separately. Before he said “I won’t answer any questions,”
defendant did not express any confusion about his right to
remain silent. In fact, in light of the preceding conversation
between defendant and Ganete, defendant’s words indicated
that he understood exactly what that right meant.12 Thus,
viewed in its proper context, defendant’s apparent confusion
about the meaning of the warning that his statements could
be used against him could not reasonably be understood to
cast doubt on the ordinary import of his declaration, “I won’t
answer any questions.” See Barrett, 479 US at 529; Kell, 303
Or at 99 (“interpretation is only required where the defen-
dant’s words, understood as ordinary people would under-
stand them, are ambiguous”).
	        Moreover, to the extent that the trial court’s finding
that defendant “posed” a “quandary” was meant to indicate
that defendant was uncertain about whether to invoke his
right against self-incrimination, that finding was based on
a similarly speculative—and equally impermissible—infer-
ence. That is, assuming that a reasonable officer would have
understood that defendant was confused about the meaning
of the warning that anything he said could be used against
him, that confusion should not have been understood to indi-
cate that, when defendant said “I won’t answer any ques-
tions,” he was uncertain about whether to invoke his right
to remain silent. There was nothing in those words or the
context in which they were spoken indicating that defendant
was uncertain about whether to exercise that right, even
though Ganete may have believed that, with further clarifi-
cation of the warning, defendant might change his mind.
	       Of course, if defendant subsequently had reopened
the dialogue with the officers by making unprompted
statements that indicated a willingness to have a gener-
alized discussion about the investigation, they could have
	12
       As discussed, defendant previously had asked Ganete whether he “ha[d] to
answer [his] questions,” and Ganete had responded that defendant “did not have
to answer any questions or talk to me if he chose to.”
618	                                    State v. Avila-Nava

proceeded with further questioning. McAnulty, 356 Or at
456-57. Likewise, if the officers had reinitiated the con-
versation after waiting a reasonable length of time, given
defendant new Miranda warnings, and defendant had indi-
cated willingness to talk about the investigation, further
questioning also would have been permissible. Id. at 458. In
the meantime, however, the officers were required to take
defendant at his word and cease questioning him. Sparklin,
296 Or at 89.

	        To recapitulate: Defendant’s words “I won’t
answer any questions” appeared on their face unequiv-
ocally to invoke his right against self-incrimination. As
discussed, the objective meaning of those words must be
considered in the totality of circumstances at and pre-
ceding the time they were uttered, not based on evidence
that occurred after defendant invoked his right to remain
silent. Thus, the trial court erred in basing its conclusion
on evidence that occurred after defendant invoked that
right.

	        Here, there was no evidence in the record to sup-
port the state’s argument that a reasonable officer would
have understood defendant’s words as a question when they
were uttered. Nor was there evidence of a language bar-
rier between defendant and the officer. Finally, there was
no evidence that defendant’s words posed a “quandary,” in
that they conveyed either confusion about the meaning of
his right against self-incrimination or uncertainty about
whether to invoke that right. Accordingly, there was no evi-
dence preceding or contemporaneous with the invocation to
support the trial court’s conclusion that defendant failed to
unequivocally invoke his right to remain silent. Because the
officer continued to question defendant after his unequivo-
cal invocation and that constitutionally precluded question-
ing led to defendant’s challenged statements, those state-
ments should have been suppressed for a violation of his
right against self-incrimination.

	       The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
Cite as 356 Or 600 (2014)	619

	        KISTLER, J., concurring in part and concurring
in the judgment.
	         This case arises out of an officer’s efforts to ensure
that defendant understood his Miranda rights. Midway
through a colloquy concerning those rights, defendant
expressed uncertainty about what the admonition—that
anything he said could be used against him—meant. The
officer repeated the admonition, and defendant stated, “I
won’t answer any questions.” The trial court recognized that
defendant’s statement, viewed in isolation, appeared to be
an unambiguous invocation of his right to remain silent. The
trial court found, however, that, viewed in context, defen-
dant’s invocation was ambiguous and that, in responding
to it, the officer only sought to clarify defendant’s Miranda
rights. Considering the entirety of the officer’s colloquy with
defendant, the trial court found that defendant had not
invoked his right to remain silent.
	         The majority reaches a different conclusion. In
doing so, it does not question the conclusion the trial court
reached; that is, the majority does not disagree that, if we
considered the entirety of the officer’s colloquy with defen-
dant, the trial court correctly concluded that defendant had
not invoked his right to remain silent. Rather, the majority
holds that, in determining whether defendant invoked his
right to remain silent, a court may consider only the evidence
that preceded or was contemporaneous with that invocation.
Looking solely at that evidence, the majority concludes that
only one conclusion is permissible: Defendant’s initial state-
ment was an unambiguous invocation of his right to remain
silent, and the statements that followed must be suppressed.
The majority accordingly reverses the trial court’s judgment
and remands for further proceedings.
	        I concur in the majority’s judgment, but my reasons
for doing so differ in part from the ones that the majority
gives. If the first issue that the majority decides were an
open question, it might deserve more discussion than the
majority gives it. As this case illustrates, the bright-line rule
that the majority announces can result in suppressing a sus-
pect’s statements when the officer merely sought to ensure
that the suspect understood his rights and did nothing to
620	                                                     State v. Avila-Nava

impair the suspect’s assertion of them.1 However, the major-
ity’s rule has a legitimate prophylactic effect. It helps ensure
that officers will not badger or cajole suspects who invoke
their Miranda rights, and it avoids potentially difficult post
hoc inquiries into whether the officer’s clarifying questions
went too far.
	         Were this an open issue, I might reach a different
conclusion from the majority. After all, we frequently ask
officers to make difficult, fact-specific judgment calls, and a
rationale that the majority offers for the state constitutional
rule that it announces—that officers need rules—rests on a
premise that is inconsistent with that experience and begs
the question of what the rule should be. Whatever the merit
of that debate, however, the United States Supreme Court’s
decision in Smith v. Illinois, 469 US 91, 105 S Ct 490, 83 L Ed
2d 488 (1984), effectively forecloses it. In that case, the
Court held that, under the Fifth Amendment, only evidence
that precedes or is contemporaneous with a suspect’s invo-
cation of a Miranda right may be considered in determining
whether the invocation was unambiguous. Id. at 100.2

	1
        That was the situation in Smith v. Illinois, 469 US 91, 105 S Ct 490, 83 L Ed
2d 488 (1984), and it resulted in a divided Court for precisely that reason. In con-
sidering that issue, Justice Rehnquist’s dissenting opinion reasoned:
     	 “The Court asserts that subsequent statements cannot be used to call
     into question the clarity of an earlier ‘request’ for counsel. It may be that
     a crystal-clear statement could not be rendered ambiguous by subsequent
     responses to questions seeking clarification. But statements are rarely that
     clear; differences between certainty and hesitancy may well turn on the
     inflection with which words are spoken, especially where, as here, a sev-
     en-word statement is isolated from the statements surrounding it. But in the
     ordinary give-and-take of statement and response in a colloquy such as this,
     I see no reason why the entire flavor of the colloquy—lasting less than five
     minutes—cannot be considered by the trier of fact.”
469 US at 101 (Rehnquist, J., dissenting).
	2
        The officer in Smith advised the defendant of each Miranda right and then
asked if he understood that right. 469 US at 92-93. Midway through that process
and after being advised of his right to a lawyer, the defendant said, “Uh, yeah. I’d
like to do that.” Id. at 93. The officer continued by advising the defendant that,
if he wanted a lawyer and could not pay for one, a lawyer would be provided free
of cost, to which the defendant replied, “Okay.” The officer then asked whether,
knowing those rights, the defendant “wish[ed] to talk to [him] at this time with-
out a lawyer being present.” Id. The defendant responded, “Yeah and no, uh, I
don’t know what’s what really.” Id. The Court held that only the evidence that
preceded the defendant’s response, “Uh, yeah. I’d like to do that,” could be con-
sidered in determining whether that response was an unambiguous invocation of
Cite as 356 Or 600 (2014)	621

	        To be sure, defendant does not raise a Fifth
Amendment claim in this case. He invokes only his rights
under Article I, section 12, of the Oregon Constitution, and
we are free to adopt a less stringent standard under the state
constitution than the Fifth Amendment rule that the Court
announced in Smith. There would be little point, however, in
announcing a state constitutional rule that permits Oregon
courts to consider evidence that the Fifth Amendment pre-
cludes them from considering. For that reason, I agree with
the majority that, in determining whether defendant’s invo-
cation was unambiguous, the trial court could consider only
evidence that preceded or was contemporaneous with the
invocation.
	        The remaining question is whether the evidence
that preceded defendant’s invocation permitted the trial
court to find his invocation ambiguous. In analyzing that
issue, the majority correctly recognizes that the question
whether defendant’s invocation, viewed objectively, was
ambiguous can turn on, among other things, his tone of
voice, the inflection of his words, any gestures that pre-
ceded or accompanied the invocation, and the tenor of the
conversation that preceded the invocation. The majority
also correctly recognizes that those clues to the meaning
of defendant’s words are, in the first instance, questions of
historical fact for the trial court. Having correctly recog-
nized the fact-bound nature of the meaning of a person’s
statements, the majority also correctly recognizes that the
record in this case is not sufficient to support the conclusion
that the trial court reached.
	        In this case, the state’s argument that defendant’s
invocation was ambiguous rests on (1) the officer’s opinion,
which he stated at the suppression hearing, that defen-
dant’s invocation was more in the nature of “a question that
he was pondering to me from lack of understanding” and
(2) the uncertainty that defendant previously had expressed
regarding Miranda rights generally and, more specifically,
the meaning of the admonition that anything he said could
be used against him.

the right to a lawyer. Id. at 100. Looking only at that evidence, the Court held the
invocation unambiguous.
622	                                       State v. Avila-Nava

	       In my view, the difficulty for the state lies in the
apparent clarity of defendant’s statement, “I won’t answer
any questions.” The statement, as the officer reported it, was
unconditional. Moreover, the officer did not testify at the
suppression hearing to any inflection in defendant’s words
or any quality in the tone of his voice that caused the officer
to conclude that defendant was posing a question to him.
Rather, the officer testified that he based his opinion that
defendant was posing a question to him on defendant’s “lack
of understanding.” And, under Smith, the only relevant evi-
dence of defendant’s lack of understanding consists of two
questions that defendant had asked the officer before defen-
dant said, “I won’t answer any questions.” As the majority
explains, neither question undercuts the significance of the
words that defendant used.
	        Defendant posed the first question immediately
after the officer read defendant his Miranda rights and
asked whether he understood them. Defendant responded,
“I have a question. Do I have to answer your questions?”
The officer told him that he “did not have to answer any
questions or talk to [the officer] if he chose [not] to [do so].”
And defendant explained that he understood. Defendant’s
first question provides no support for the officer’s opinion.
If anything, defendant’s question and the officer’s answer
imply that defendant’s subsequent invocation was unambig-
uous; that is, defendant chose to exercise the right to remain
silent, which the officer had told him he had.
	         The second question occurred when the officer was
going over each of the Miranda rights individually. The
officer told defendant that “anything you say may be used
against you in a court of law,” and defendant stated, “I don’t
understand what this means.” When asked what he did not
understand, defendant replied, “Anything I say can be used
against me.” The officer responded, “That’s correct. Anything
you say can be used against you.” At that point, defendant
stated, “I won’t answer any questions.” Defendant’s state-
ment appears to be a non sequitur. It is not apparent, how-
ever, why defendant’s uncertainty about the extent to which
his statements could be used against him converts his
apparent invocation of his right to remain silent into a ques-
tion. If anything, defendant’s uncertainty suggests that he
Cite as 356 Or 600 (2014)	623

may have been concerned that his answers—whether excul-
patory or inculpatory—could be used against him and, as a
result, simply chose not to “answer any questions.”
	        Frequently, what a person means will depend on a
myriad of contextual clues, and a trial court’s explicit and
implicit factual findings regarding those clues will effec-
tively resolve the question whether a particular invocation
was ambiguous. In this case, however, the trial court based
its conclusion that defendant’s invocation was ambiguous on
evidence that occurred after he invoked, and the evidence
that preceded defendant’s invocation is not sufficient to
support a finding that defendant’s words meant something
other than what they said. In those circumstances, I agree
with the majority’s conclusion that defendant’s invocation
of the right to remain silent was unambiguous and fore-
closed the state from using defendant’s subsequent answers.
Accordingly, I concur in part and concur in the judgment.
	       Linder, J., joins this opinion concurring in part and
concurring in the judgment.
