¶1dissenting.
¶2I respectfully dissent.
¶3I cannot join the majority in finding an ambiguity in the Defendant’s plain statement, “I’m not going to answer anything.” By such words he did not equivocate as to a possible preference for one interrogator over another.
¶4Neither can I join my colleague who in dissent declares that the only rational conclusion the evidence supports is that the Defendant by his statement intended to cut off the questioning and made that intention known unequivocably.
¶5*65Mine is a middle ground. The record does not beyond a reasonable doubt support the conclusion that the Defendant’s right to cut off questioning was “scrupulously honored.” State v. Stone, Me., 397 A.2d 989, 995 (1979); Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975).
¶6Neither does the record reflect that the Defendant himself, rather than Sergeant Wilcox, initiated the conversation which thereafter ensued. The Defendant’s right to remain silent stands on the same plane with his right to the presence of counsel. Once either right is claimed, it must be rigorously protected. See Edwards v. Arizona, - U.S. - , -, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).
¶7I find no need to reach the factual question of what may have been the second questioner’s motivation in pursuing the interrogation, as does my colleague in his dissent.
¶8dissenting.
¶9I respectfully dissent.
¶10The single question here presented is whether or not the police officers were entitled, under the restrictions of the Miranda doctrine, to continue to question this defendant once he had expressed his desire that questioning cease. The Miranda case itself sets the guidelines for police to follow once such an indication is given:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.
¶11Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 723 (1966). By this language, the Court required that once an interrogated suspect makes known his desire for questioning to cease, the questioning must, in fact, cease. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed. 313 (1975), the Court examined the circumstances under which questioning may permissibly be resumed. Recognizing the critical safeguard of the person’s “right to cut off questioning,” the Court emphasized its intention to adopt “fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored .... ” Id. at 102-03, 96 S.Ct. at 325-326, 46 L.Ed.2d at 320-21 (quoting Miranda, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.
¶12Thus, in order to determine the admissibility of statements obtained after the suspect has indicated exercise of his right to cut off questioning, it must be determined if the police “scrupulously honored” the suspect’s right to remain silent. Id.
¶13The burden is on the state to show, beyond a reasonable doubt, that defendant’s right to remain silent, having been asserted, was “scrupulously honored” by the police officers before the questioning was resumed. State v. Stone, Me., 397 A.2d 989, 995 (1979); State v. Capitan, Me., 363 A.2d 221, 222 (1976). In the present case, such a showing is not made by any reasonable view of the evidence. This defendant, after undergoing questioning for approximately an hour, stated after a period of heated interrogation: “I got no more questions. I’m not going to answer anything.” (emphasis added). The detective conducting the interrogation at that point ceased his *66questioning, instructed his fellow police officer, in the presence of the defendant, to serve the defendant with an arrest warrant (which is now admitted to be invalid) and left the room angrily, turning off the tape recorder as he went. The second police officer, although not then executing the warrant, continued the interrogation by asking “Do you want to talk to me anymore alone?” No significant period of time had passed and no fresh warnings were given before that inquiry was made. See Michigan v. Mosley, 423 U.S. 96, 106, 96 S.Ct. 321, 327, 46 L.Ed.2d 313, 322 (1975). As a result of that gambit, a further dialogue occurred between the second police officer and the defendant, which resulted in the making of the challenged inculpatory statements.
¶14This defendant could not have given a more definitive, specific, clear-cut, and all-encompassing expression of his intention that all questioning cease as of the time when he spoke. His reference is to “no more questions.” That language indicates his intention not to deal with any more questions. When coupled with his immediately following statement, “I’m not going to answer anything,” the universality of his intention with respect to the scope of further examination is not to be doubted, misunderstood, or mistaken. In invoking his right under Mirandato remain silent, the defendant
is not required to use any particular language to indicate his unwillingness at that time to discuss his case or to give any explanation or reason for refusing to continue with the interrogation. Even in cases in which a suspect makes no express assertion, no particular form of words or conduct is necessary to constitute such an invocation.
¶15People v. Marshall, 41 Cal.App.3d 129, 134, 115 Cal.Rptr. 821, 824 (1974).
¶16It is beyond belief that the second police officer could have doubted that the defendant intended, by this statement, to break off completely all questioning on the subject matter involved in the interrogation conducted by the first officer, regardless of the source from which any questions on that subject might subsequently originate. Thus, the officer’s inquiry, “Do you want to talk to me anymore alone,” can not be understood, by any reasonable construction of the requirements of Miranda, as an inquiry innocently calculated to clarify the defendant’s statement. It was clearly the beginning of an effort to persuade the defendant to reconsider his decision to remain silent. See United States v. Lopez-Diaz, 630 F.2d 661 (9th Cir. 1980).
¶17The specific language used by the defendant to exercise his right to cut off the questioning contains no hint of ambiguity as to the defendant’s intent and, by itself, could not be the basis of any proper determination by the court below that such ambiguity existed. Also, the circumstances under which the questioning was being conducted at the time the defendant made known his exercise of that right, and the circumstances under which the questioning continued, provide no support whatever for a conclusion that the defendant intended to indicate anything other than his desire that all questioning on the subject matter then being discussed should cease. The state had the burden to demonstrate:
that the challenged confession meets the constitutional test of admissibility; and to contend as they do, that the refusal under the circumstances should not be considered an invocation of the privilege, they must affirmatively demonstrate that defendant “was not thereby indicating a desire to remain silent.”
¶18People v. Marshall, 41 Cal.App.3d at 134, 115 Cal.Rptr. at 824. The state has not carried that burden in this case.
¶19On these facts, it is my view that the police officer, in continuing the interrogation as he did, violated the requirement that the defendant’s right to “cut off the questioning” be “scrupulously honored.” This is the only rational conclusion that the evidence in this record supports. I would accordingly vacate this conviction on the ground that the defendant was unfairly prejudiced by admission of statements obtained in violation of Miranda.
¶20. The present case does not involve the procedures to be followed if the person in custody asks to consult a lawyer, because the defendant here never made such a request. In Miranda, the Court stated that once the individual has requested a lawyer, the questioning must cease “until an attorney is present.” 384 U.S. at 474, 86 S.Ct. at 1627-1628, 16 L.Ed.2d at 723. The Court has recently articulated a more specific exposition of that requirement. Edwards v. Arizona, - U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
¶21. As the majority opinion points out, Lopez-Diazrecognizes a distinction between an inquiry to clarify whether the defendant intends to invoke his right to remain silent and one “aimed at eliciting incriminating statements concerning the very subject on which the defendant has invoked his right.” Id. at 665. The holding of the case is, however, that resumption of questioning on a subject as to which defendant had expressly asserted the right to remain silent was a Mirandaviolation. The court pointed out that “no significant period of time had elapsed, nor had fresh warnings been given” between the time the defendant asserted his right to stop the questioning on the specific subject and the time at which the officer re-initiated questioning on that subject. Id. at 664. The Lopez-Diazcourt found the questioning comparable to that in United States v. Barnes, 432 F.2d 89, 91 (9th Cir. 1970) in which it held that a confrontation and interrogation “for the obvious purpose of getting defendants to abandon their self-imposed silence, were in flagrant violation of the rule as set forth in Miranda.’’ The similarity of Lopez-Diazand Barnesto the present case is obvious.
¶22. In United States v. Bishop, 49 Or.App. 1023, 621 P.2d 1196 (1980), the police also had used the tandem questioning technique. The court there said: “It matters not that defendant had not made his request to remain silent to [the second officer]. A suspect may not be ‘passed off with impunity to police officers who have not witnessed defendant’s assertion of his rights.” Id.at 1027 n.3, 621 P.2d at 1198 n.3. (emphasis added). Any insulation from impropriety that might be provided by that technique *67vanishes where, as here, the second officer is actually present and hears the defendant assert his right to remain silent. See State v. Wiberg, Minn., 296 N.W.2d 388, 391 (1980).