State v. Strayhand

911 P.2d 577, 184 Ariz. 571, 198 Ariz. Adv. Rep. 21, 1995 Ariz. App. LEXIS 205

• Court: Court of Appeals of Arizona
• Decided: September 7, 1995
• Docket: 1 CA-CR 92-1386, 1 CA-CR 92-1391
• Status: Published

Opinions

OPINION

KLEINSCHMIDT, Judge.

The Defendant, Lester Earl Strayhand, was convicted, following a trial by jury, of three counts of armed robbery and two counts of theft. Strayhand’s confessions as to one of the thefts and all the robberies should not have been admitted in evidence. The State had the burden of showing that the confessions were voluntary and the totality of circumstances compels the conclusion that the police obtained those confessions by overbearing the Defendant’s will. In finding otherwise, the trial court committed clear and manifest error, even when the evidence is viewed in the light most favorable to the State.¹ We reverse and remand for a new trial.

FACTS

Sometime after one o’clock in the morning of May 23, 1991, two Jaek-in-the-Box restaurants in Mesa were robbed within the span of one hour. Employees of the restaurants testified that the robber was a young African-American male with a bandage on his left cheek. In each instance, the robber placed an order at the drive-through window, paid for the order, and then pulled a gun and demanded money.

About a month later, on June 20, 1991, at around two o’clock in the morning, a Whataburger in Mesa was robbed in a similar fashion. The Whataburger employee who was working at the drive-through window testified that a young, African-American male, driving a gray Chevrolet Blazer, placed an order, paid at the window, and then drove away. The man was wearing a navy leather jacket and baseball cap and had a white bandage on his left cheek. Five minutes later the same man returned to the drive-through and placed a new order. When the employee opened the cash register, the man robbed her at gunpoint and drove away.

A short while later, a Mesa police officer saw a vehicle matching the description of the robbery vehicle in a drive-through lane at a nearby Jack-in-the-Box restaurant. He saw the driver run from the vehicle. The police recovered a plastic bag, a loaded revolver, and several fingerprints from the vehicle. A fingerprint from the inside of the driver’s door was ultimately determined to match the Defendant’s left thumb print, but no other matching prints were found on the gun, the plastic bag, or the broken steering column. The Whataburger employee who had been robbed that morning later identified the Blazer as the vehicle used in that robbery. It had been stolen in the area a few hours earlier.

Nearby, and shortly after the officer saw the suspect flee on foot from the Jack-in-the-Box, another Mesa police officer saw the Defendant, who matched the description of the robbery suspect, driving a tan station wagon. The officer stopped the station wagon, established that it had been stolen, and arrested the Defendant. The Defendant was wearing a white shirt and beige shorts and had no bandage on his face. The police drove the Whataburger employee to the site of the arrest to identify the Defendant, but she stated that he was not the man who had robbed her earlier that morning.

The Defendant was taken to the police station for questioning. He arrived there about 3:30 a.m. and was left in a holding cell for over nine hours. The Defendant testified that he was unable to sleep during that period because the holding cell was too cold. He further testified that, though he had been offered food by the jailer, he had had nothing to eat since the previous morning. At around 12:45 p.m. on the day the Defendant was arrested, Mesa Police Detectives Ron Schoch and Curtis Adams took the Defendant to an interrogation room, gave him a Miranda warning, and questioned him for over two hours.

Ultimately, the Defendant was questioned on two separate occasions. We will discuss the details of the interrogations in the sequence in which they occurred. Most of the first interrogation was tape recorded, but the recorder was turned off during a break about half way through the interrogation. Detective Adams continued to discuss the case with the Defendant during that break. The record contains a complete transcript of only that part of the first interrogation which followed the break.²

During the second part of the first interrogation, the Defendant was given something to eat and drink. The detectives questioned him about his friends and acquaintances and then turned their attention to the robberies. They lied to the Defendant and told him that several people, including the Whataburger employee, had identified him as the robber. The Defendant denied committing the robberies, and the officers continued their questioning concerning his friends and his activities over the past several days.

The detectives suggested on several occasions that the Defendant’s lack of cooperation might make things more difficult for him. Early in the interrogation Detective Adams stated:

I don’t want to sit here all day and have to nail you down on every little thing. Don’t make me do that. I will do that if I have to do it that way. Then I will ask for a lot of jail time because you’re not going to cooperate with me and I’m not going to help you.

Later in the interview Detective Adams stated:

I think you’re sitting there lying to me and you’re going to make me prove everything the hard way and I wish I didn’t have to but if you’re going to make me, then I will. Okay? Priors, on probation, we can make it real uncomfortable. No cooperation.

To this, the Defendant responded:

Fuck everything man. Just do what you guys want to do. Send me to jail or whatever, okay. Just forget it. That’s how I look at it. Just fuck it. I ain’t gonna be here for too long.

A brief discussion ensued as to whether the Defendant was threatening suicide, and then the detectives returned to their questioning. The Defendant stated several times that he had told the detectives all he knew, but the detectives continued to accuse him of lying. The Defendant at one point stated, “It’s a crock, just get it over with man. I don’t want shit.” The detectives continued their questioning and the following dialogue took place:

Detective Sehoch (“S”): Well this is your opportunity to get it all straight okay? The Defendant (“D”): Well I have been straight.

S: We’ve been straight, listen, we’ve been straight with you since we’ve stained talking.

D: I have been. I don’t know, okay. I just want to forget it. I don’t want ...

S: We have no reason to lie.

D: Well I don’t want answer anymore. I mean I’m in, fuck it _I’m going to have a fucked up life.

S: It’s not too late to straighten it out.

D: Bull fucking shit. I’ve tried for too fucking long now.

S: Well maybe it’s the friends you tell me you’re keeping. Did you ever think about that?

D. It’s not my company. I can’t do this shit.

The interrogation proceeded with a discussion of the Defendant’s failure to complete high school and failure to obtain suitable employment. The Defendant began to break down and cry and continued to make statements like: “No I don’t want to hear nothing else man”; “I don’t care man. I don’t give a fuck. It will be all over with so what the fuck man”; and “Fuck it. It doesn’t matter man.” The detectives then turned to questioning the Defendant about some prior legal problems he had encountered.

D: Oh you’re talking about the uh the uh endangerment and all that?

S: Uhm hum. Yeah.

D: I have no comment on that situation that happened.

S: Was this a part of, is this what came out of there, that warrant out of that or something else?

D: Yeah, I figured it has to be from.

S: Okay.

Detective Adams (“A”): Okay so you figured this whole thing is fucked and that’s why you don’t want to tell us about the robbery or anything else, right?

D: _I’m not going to talk worth a shit anyway so it doesn’t matter to me. A: Okay. Well let me ...

D: _time right?

A: Let me, I can’t guarantee you won’t do time. There’s no way I can guarantee that and neither can he.

D: Well get me outta here man. I’m going back to the fucking jail. That’s all

A: Let me tell you a little story here real quick. There’s a lady that works over here at the Tri City Community Service Center ... she’s working with them and there’s programs that they can get there if you willing to ask for help, there are people that will help you. There’s priests down there....

Detective Adams went on to tell the Defendant that other people who had been in trouble had been able to straighten out their lives and that if he confessed the detective would tell the county attorney that he had been cooperative. The detectives also told the Defendant that it would look better if his parole officer could write in the report that the Defendant had cooperated.

The interrogation then continued with a discussion of the events of the previous day. The detectives began telling the Defendant that all the facts seemed to point to him and that his lying was “just digging a deeper hole,” and would get his “butt buried so far,” that he wasn’t “even gonna see daylight.” Detective Schoeh also told the Defendant that he was going to hang him in court and that the Defendant was “going to do some big time,” unless he cooperated. He stated that his cooperation “matters on the amount of time you get,” and that “we can hopefully limit some of that time.” The detectives then told the Defendant that they had the lab report and that it revealed that his fingerprints were on the Blazer used in the robbery. That lab report was not actually available to the detectives until later. Finally, at the end of the first interrogation, Detective Adams stated:

I’m going to go ahead and file it and my recommendation is you’re uncooperative ... I’m going to go ahead and file eases and I get to go in and say you were uncooperative and didn’t want to help me

so I’ve got it made. Makes me real easy here. But it’s never too late.

After the first interrogation, the Defendant was taken back to the holding cell while the detectives completed booking him before they took him before a judge for his initial appearance. During this time, Detective Adams spoke briefly with the Defendant, and according to Adams, the Defendant told him that he wanted to get some things off his chest. The detective told the Defendant that they would talk to him later because they were under time pressure to get him to the initial appearance. The Defendant later claimed that Detective Adams promised him that if he confessed they would not charge him with the robberies. The detectives testified that no such promise was made. The trial judge made no explicit finding with respect to this, but it is implicit in his conclusion that no such promise was made.

At about 5:00 p.m., the Defendant was taken before a judge for his initial appearance. The judge advised the Defendant of the charges against him and advised him of his right to counsel and his right to remain silent. See Ariz.R.Crim.P. 4.2(a). The Defendant was then returned to the holding cell where he spoke with his probation officer.

At about 6:00 p.m., the Defendant was taken to an interrogation room for further questioning. According to the Defendant, this second interrogation was initiated by the detectives. According to the detectives, the Defendant asked to speak to them. The trial court found as a fact that the Defendant asked to speak to the detectives.

At one point during the second interrogation, the Defendant asked if it might be in his best interests to have an attorney present. The officers told him that he had a right to an attorney and they could get one, but the Defendant said he would go ahead and answer their questions. The Defendant was questioned for about forty-five minutes, and he eventually confessed to the robberies.

The facts as they developed from the testimony of the two detectives are very confusing with regard to exactly when the Defendant confessed to what. It is unnecessary to trace all of the conflicts in the detectives’ testimony on this point because, while the record allows some room for speculation, it appears that the Defendant did admit to suspecting that the station wagon was stolen when he drove it and that this admission probably occurred early in the first interrogation. As far as the record shows, this occurred before the Defendant told the detectives that he did not want to continue with the interrogation and before they made any threats. During argument on the motion to suppress, the Defendant’s attorney alluded to what the Defendant had said about the station wagon and disavowed any request to suppress statements relating to the station wagon.

At the close of the suppression hearing, the trial judge found that the State had proven compliance with Miranda. The judge, in alluding to the threats and promises, said, “The officers were being truthful that they could make it rough for the defendant. ...” He went on to say that the cooling off period between the two interrogations attenuated the promises. The judge observed, “Time did lapse without pressure, without defendant being reminded,” but went on to say, “But he knew what would probably transpire in his life without continued police presence or questioning.” The day following this ruling, the judge made supplemental findings in which he said:

And I also find by a preponderance of the evidence that the statements which were made by the law enforcement officers to him that he basically could make life rough or something like—to that effect, but you are on probation. That’s the truth. And because you have prior felony convictions. That’s also the truth.

The judge went on to hold that the confession was not the result of promises or threats.

Later, to complete the investigation, Detective Schoeh prepared a photographic lineup and showed it to the employees from each of the Jack-in-the-Box restaurants that had been robbed on May 23. The employee from the first robbery identified the Defendant approximately one month after the robbery. The clerk from the second robbery could not identify the Defendant in the photographic lineup. The lineup was never shown to the Whataburger clerk who had been robbed in June.

At trial, the Defendant testified that he had been riding in the Blazer the night of the Whataburger robbery with a friend named Dee. He said that they had driven past the station wagon earlier in the evening, and Dee had told him that they could use it. According to the Defendant, at one point in the evening Dee dropped him off so he could make a phone call, drove away, and then returned, telling the Defendant to get in the back seat of the Blazer. The Defendant testified that he got in the Blazer and laid down in the back seat. At that point in time, Dee proceeded through the drive-through of the Whataburger and committed the robbery.

THE CONFESSION TO THE ROBBERIES AND TO THE THEFT OF THE BLAZER WAS THE RESULT OF THREATS

All confessions are presumed to be involuntary, and the state bears the burden of proving by a preponderance of the evidence that any confession is voluntary and freely given. Amaya-Ruiz, 166 Ariz. at 164, 800 P.2d at 1272. The trial court must consider the totality of circumstances to determine whether a confession is voluntary. Id.

The Defendant had been in police custody for approximately twelve hours before the first interrogation began. He had not slept nor eaten since the previous morning. The first interrogation lasted for over two hours, during which the Defendant broke down and cried and made at least one veiled suicide threat which one of the detectives recognized as such. The significance of these points is that, while the Defendant’s condition alone was certainly not enough to say that he was not acting of his own free will, the court should evaluate voluntariness “in light of what the police should perceive from the objective manifestations of the suspect’s physical or mental condition.” State v. Carrillo, 156 Ariz. 125, 137, 750 P.2d 883, 895 (1988).

During the first interrogation, the detectives lied to the Defendant, telling him that the lab report revealed that his fingerprints were on the Blazer used in the robbery and that the Whataburger clerk had identified him as the robber. Because “courts will tolerate some form of police gamesmanship so long as the games do not overcome a suspect’s will and induce a confession not truly voluntary,” State v. Tapia, 159 Ariz. 284, 289, 767 P.2d 5, 10 (1988), the misrepresentations are not per se impermissible. They are, however, part of the mix that must be considered in assessing whether the Defendant’s will was overborne.

The critical fact, however, is that the detectives’ promises and threats caused the Defendant to confess. A confession “obtained by any direct or implied promises, however slight,” is involuntary. Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976); State v. Williams, 136 Ariz. 52, 56, 664 P.2d 202, 206 (1983). Three times the detectives told the Defendant that if he cooperated they would tell the county attorney, the judge, and the parole officer that he had been cooperative. They told him that his cooperation “matters on the amount of time you get,” and that “we can hopefully limit some of that time.”

The “however slight” language in Hutto has not been literally applied in every context. Police may offer to tell the prosecutor about the defendant’s cooperation and suggest that such cooperation may increase the likelihood of a more lenient sentence. United States v. Harrison, 34 F.3d 886, 891 (9th Cir.1994) (citing United States v. Willard, 919 F.2d 606, 608 (9th Cir.1990)); United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir.1988); Tapia, 159 Ariz. at 290, 767 P.2d at 11; State v. Hall, 120 Ariz. 454, 456-57, 586 P.2d 1266, 1268-69 (1978). So long as the promise is “couched in terms of a mere possibility or an opinion,” the promise is generally not sufficient to render a confession involuntary. State v. McVay, 127 Ariz. 18, 20, 617 P.2d 1134, 1136 (1980).

While the detectives’ representations that the Defendant’s cooperation would be communicated to the prosecutor were permissible, that was not all they told him. They repeatedly told him that if he did not confess they would make it harder on him. “Threatening to inform the prosecutor of a suspect’s refusal to cooperate violates her fifth amendment right to remain silent.” Leon Guerrero, 847 F.2d at 1366 n. 2; United States v. Tingle, 658 F.2d 1332, 1336 n. 5 (9th Cir.1981). Furthermore, “promises that officers would see to it that a defendant would go to prison if he failed to cooperate” are not permissible. Tapia, 159 Ariz. at 290, 767 P.2d at 11. Cf. State v. Ross, 180 Ariz. 598, 603-04, 886 P.2d 1354, 1359-60 (1994) (statement by police that they could go to court to prove intentional murder was not an impermissible threat where police did not imply that defendant would receive lesser punishment if he confessed to felony murder where defendant knew punishment for both crimes was the same).

Harrison, 34 F.3d 886, is a very recent case on point in which federal agents arrested a woman at her house, read her her rights, and began to question her. Id. at 890. The agents told the woman about the evidence against her, informed her of the prison time she might be facing, and then asked her “whether she thought it would be better if the judge were told that she had cooperated or had not cooperated.” Id. The defendant responded that it would be better if she cooperated and then made an incriminating statement. Id. The court found that the suggestion that the agents might inform the court that she had not cooperated was improper. Id. at 891. In distinguishing the improper statements made by the agents from acceptable statements, the court stated:

Although it is permissible for an interrogating officer to represent, under some circumstances, that the fact that the defendant cooperates will be communicated to the proper authorities, the same cannot be said of a representation that a defendant’s failure to cooperate will be communicated to a prosecutor. Refusal to cooperate is every defendant’s right under the fifth amendment. Under our adversary system of criminal justice, a defendant may not be made to suffer for his silence. Because there is no legitimate purpose for the statement that failure to cooperate will be reported and because its only apparent objective is to coerce, we disapprove the making of such representations.

Id. (quoting Tingle, 658 F.2d at 1336 n. 5). The court recognized that the distinctions between police activities which are permissible and those which are taboo are very subtle and subject to confusion. Id. at 891. While statements that cooperation may benefit the defendant and statements that lack of cooperation may result in harsher treatment may appear to be two sides of the same coin, they are not entirely interchangeable. Id. The court stated that the first kind of statement may be of some benefit to the defendant from learning of the possibility of reduced sentences. Id. at 891-92. The second kind of statement, however, has no legitimate purpose and can only be intended to coerce. Id.; Tingle, 658 F.2d at 1336 n. 5; Collazo v. Estelle, 940 F.2d 411, 416-19 (9th Cir.1991), cert. denied, 502 U.S. 1031, 112 S.Ct. 870, 116 L.Ed.2d 776 (1992). A defendant should not be penalized for exercising his rights. See Carrillo, 156 Ariz. at 131, 750 P.2d at 889. The court in Harrison concluded:

[T]here are no circumstances in which law enforcement officers may suggest that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor. “[T]he admissibility of a confession turns as muck on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne. ”

34 F.3d at 891-92 (quoting Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985)); see also Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12 L.Ed.2d 653 (1964) (no penalty may be imposed for remaining silent).

The detectives told the Defendant that if he didn’t cooperate, they would ask for a “lot of jail time,” and said that if he did not cooperate they could make it “real uncomfortable.” When he refused to talk, they told him that they were going to “file their recommendation that he was uncooperative.” When they terminated the first interrogation, the very last thing they said to him was that it was never too late to confess to avoid their recommendation that he be treated as uncooperative. Shortly after that, the Defendant asked to talk to them, but this second interrogation had to wait until after the initial appearance.

The trial judge never drew a clear distinction between permissible discussion of the possibility of leniency in return for cooperation and impermissible threats. He therefore applied the wrong law to the question before him. The trial judge’s observation that the threats were permissible because they were true undercuts his ultimate ruling. The truth of the threats only strengthens their coercive effect.

Contrary to another of the trial judge’s conclusions, nothing that occurred after the threats dispelled their effect. To determine whether coercive pressures have been dispelled we undertake an independent examination to see if there was a break in the stream of events sufficient to insulate the confession from the effect of everything that preceded it. Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967). It is appropiiate to consider in this regard, among other things, how much time elapsed between the application of the constitutionally impermissible pressure and the confession, whether there was any change in the place of interrogation, and whether there was a change in the identity of the interrogators. Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985). All of these factors militate in the Defendant’s favor.

The ease of State v. Emery, 131 Ariz. 493, 642 P.2d 838 (1982), further elucidates the law on this subject and applies it to facts similar to those before us. In Emery, the defendant and a confederate were charged with murder. Id. at 496, 642 P.2d at 841. The defendant was arrested and held in an isolation cell for about six hours before he was given his Miranda warnings and questioned by detectives. Id. The defendant, when advised that his co-defendant had told the detectives that the defendant had taken part in several killings, said that he wanted a lawyer. Id. The interview terminated, but forty-two minutes later it resumed at the request of the defendant. Id. at 497, 642 P.2d at 842. The defendant testified that he asked to talk to the detectives because he had “overheard” a conversation between them in which they discussed that it was too bad that the defendant would have to take the entire blame for the murders and that he would wind up in the gas chamber. Id. The trial court denied the defendant’s motion to suppress his confession. Id.

The Supreme Court of Arizona reversed. It observed that a confession may be inadmissible as involuntary for one of three reasons: “(1) impermissible conduct by police, (2) coercive pressures not dispelled, or (3) confession derived directly from prior involuntary statement.” Id. at 502, 642 P.2d at 847. The supreme court was suspicious of the assertion that the defendant in Emery had initiated the second interrogation but it said that, even if he had, his confession should have been suppressed because the state had not met its burden of proving the voluntariness of the statement obtained after the defendant had invoked his right to counsel. Id. at 502-03, 642 P.2d at 847-48. The court found that in discussing the death penalty in the presence of the defendant, the detectives engaged in impermissible conduct which mandated a finding that the confession was involuntary. Id.

The case before us is similar. The police threatened the Defendant and their parting comment when he would not confess was to tell him that, “it was never too late.” Very shortly thereafter, the Defendant wanted to talk to the detectives but they had to take him to the initial appearance. At that point, his will had been overborne. The fact that the Defendant then saw a judge who advised him of his rights adds little to the State’s case. The Defendant had already seen one of those rights—the right to cease the interrogation—completely ignored. Nor did the judge know that the Defendant had been threatened by the police and, hence, could have said nothing specific that might have dispelled those threats. The detectives did nothing to withdraw or retract their threats. The cause and effect are obvious, and we do not believe the evidence will support any other conclusion. See Harrison, 34 F.3d at 891-92; Tapia, 159 Ariz. at 290, 767 P.2d at 11; State v. Thomas, 148 Ariz. 225, 227-28, 714 P.2d 395, 397-98 (1986).

The dissent cites Amaya-Ruiz for the proposition that a confession is rendered involuntary as the result of an express or implied promise only if the defendant relied on the promise in making the confession. Id. at 165, 800 P.2d at 1273. In Amaya-Ruiz, the court was concerned with the effect of alleged promises as opposed to the effect of threats. Assuming an analogy between the two, however, the court in Amaya-Ruiz did not say that there had to be explicit proof in the form of testimony from the defendant himself that he had relied on promises by the police in making his confession. In AmayarRuiz, the link between the supposed promises and the defendant’s confession was not nearly as obvious as is the link in this case between the refusal to cease questioning and the threats on the one hand and the confession on the other. So, too, in Amaya-Ruiz, the court had no need to examine any reliance on the supposed promises made by a police officer because it found that the officer’s statements were not promises at all. Id. Nor does Amaya-Ruiz address the rule that “any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966) (emphasis added).

We view Amaya-Ruiz as nothing more than a restatement of the rule that a court must look to all of the circumstances surrounding a confession or confessions in determining whether the Defendant’s will was overborne. Here, even in the absence of an explicit statement by the Defendant at the hearing on the motion to suppress that he confessed because the detectives persisted in questioning him and threatened him, that conclusion is inescapable on this record. The State had the burden of proof on this point, and it came forward with nothing to suggest anything but that the detectives’ impermissible tactics bore fruit.

Our conclusion is bolstered by the Defendant’s testimony at trial in which he explained why he confessed.³ Much of what he said related to the supposed promise that if he confessed to the robberies, he would not be prosecuted for them. In that respect, some of what he said is not relevant to our inquiry. His explanation is somewhat rambling. It is clear enough, however, to demonstrate that the refusal to stop the questioning and the threats of what would happen if he did not cooperate played a major part in procuring his confession. The exchange on this point was as follows:

A (By Defendant): At that time, all kinds of things were running through my head. And I guess in a way I was figuring that if I go ahead and tell the detective what he wanted to hear, then when I go to court, okay, then I will have them saying that yeah, he cooperated. Okay.

So he asked me again, did I do the armed robbery and I told him yes. That was off tape.

Q (By attorney for the defense): And, then, what did they ask you and what did you tell them in the last interview?

A: Well, they went to start questioning me again and I was wondering why did I have to turn around and talk to them again____

I remember them telling me that we have to put up with this bullshit again. At that time I felt compelled, you know, tell him whatever he wants to hear____

And I just turned and said, well, I’ll answer your questions. I figured what harm would it do then. I had told him— confessed to everything which was off tape. So I was maybe relying on promises. I did not even know why he was going over the Miranda rights again.

Q: Had you actually robbed anything on the 23rd of April of 1991?

A: No.

Q: Why did you tell him, then, that you had?

A: I told him that because I had already stated that I had did the armed robberies. So at that time, I was basically just going on dealing on my back and get it over with. I was just—

Q: At the time that you told him that you committed the armed robberies, was this about 16 or 17 hours after your arrest?

A: I think you could say that.

Q: You already said that you hadn’t had any sleep during that period of time.

A: Right.

Q: And you told the officer you were contemplating suicide during that period of questioning?

A: Yeah, I guess I did. Because I guess it just got to me, the situation because, you know, the way they were putting pressure on me. I knew for a fact that I had priors, you know. And I knew that the way things were going to, telling me I was going to do a long time, all this, if I didn’t cooperate. And I guess that’s the reason I went into that.

Q: Did you tell the officer during questioning that you didn’t want to answer any more questions?

A: Yeah.

Q: Did he continue to ask you questions?

A: I specifically told them to leave me alone. It was, again, on the first tape. I told him I did not want to answer any more questions, and he turned around and kept talking to me.

And, you know, so—and when he kept talking to me, I, again, felt compelled to sit there and talk to them. After all I had told him, what was the difference. So I indicated I didn’t want to talk to him. I was, like, I don’t know how many times I told him I didn’t want to continue talking. After I told him, leave me alone. And when I got to the point where I didn’t tell him I didn’t do it. I was fucking everyone, man.

And, you know, after, I don’t give a shit about anything anymore. It’s like that.

Q: Were both officers asking you questions during this period of time?

A: Detective Adams, when it came to their asking me about the car, Detective Adams then was stepping in and was asking more questions about the car. And the second detective, Schoeh, was wanting to know more or less about the armed robberies.

And just finished up on the second tape. What happened on the second tape, I admitted to those other three armed robberies that happened the month before. And when I admitted to those, he was just, you committed them in the same way. I was just saying yes to everything, yes I did this, yes I did that, so forth and so on.

And he, like, you admitted earlier that you were in a stolen vehicle. You know, I said yes, which was true. I told the officer as soon as I was stopped, you know, that it could possibly have been stolen anyway, you know, which is true. But I didn’t know it was stolen, you know, before I entered it. I found out it was stolen once I was already in the vehicle making a right-hand turn.

Same for the Blazer where I did not know it was—the Blazer was even stolen. I had been riding around in it the whole night and I didn’t know the Blazer was stolen.

The whole—like I say, the only reason I turned around and admitted to any of it was because Detective Adams made me promises.

THE REFUSAL OF THE POLICE TO HONOR THE REQUEST TO STOP THE INTERROGATION PLAYED A PART IN SECURING THE CONFESSIONS

The refusal of the officers to stop the questioning on request is a part of the totality of circumstances we examine to determine if the Defendant’s will was overborne. Because the State argues that the detectives did not refuse to honor an unambiguous request to stop the interrogation, it is necessary to examine the law as it relates to this question in detail. The basic law is simple.

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.

Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28 (emphasis added). A suspect’s right to cut off questioning must be “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975); State v. Bravo, 158 Ariz. 364, 368, 373, 762 P.2d 1318, 1322, 1327 (1988), cert. denied, 490 U.S. 1039, 109 S.Ct. 1942, 104 L.Ed.2d 413 (1989) (“well, I don’t wanna answer any more questions” required immediate cessation of interrogation).

A review of the first interrogation shows that, on at least one occasion, the Defendant clearly told the officer that he wanted the questioning to cease. He said, “Well I don’t want [to] answer anymore.” Clearly, questioning should have stopped at this point. Later, on at least two other occasions during this first interrogation, the Defendant indicated that he was not going to answer questions, and he also told the detectives to “get me out of here man. I’m going back to the fucking jail. That’s all____” He further told the detectives that he wasn’t going to “talk worth a shit anyway” and that he had told them all he knew. In each instance the detectives ignored the Defendant’s statements and either continued questioning him directly or changed the topic and proceeded as if he had not indicated that he did not want to answer any questions.

The State asserts that the Defendant’s invocation of his right to remain silent was ambiguous. The trial court, in ruling on whether the Defendant had invoked his right to remain silent, said:

[A]fter [the Defendant] said that, there was a diversion. He wasn’t asked specifically about the matter and it seemed like the conversation was flowing rather than the officer acting in bad faith or derogation of a clearly invoked right: I don’t want to talk anymore; leave me alone. If that had been clearly stated and the officer had continued to soften him up, I’d have some real concern.

We disagree with the State and the trial court. The Defendant’s first invocation, ‘Well I don’t want [to] answer anymore,” could not have been clearer. The additional words “I mean I’m in, fuck it. _ I’m going to have a fucked up life” do nothing to confuse or detract from the idea that the Defendant did not want to answer any more questions. His other repeated indications that he did not want to answer questions, if less clear, were clear enough. In Davis v. United States, — U.S.-,-, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994), regarding the closely related issue of a defendant’s request for an attorney, the Supreme Court stated that a suspect need not articulate his request with precision so long as he does it “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” The Defendant certainly articulated his request sufficiently clearly for the detectives to understand what he meant. Detective Adams demonstrated that he understood that the Defendant had invoked his right to remain silent when the detective said, “Ok so you figured this whole thing is fucked and that’s why you don’t want to tell us about the robbery or anything else, right?” If this were not enough, Detective Adams also testified as follows at trial:

Q (by the prosecutor): What did you do in response to Mr. Strayhand’s saying something along the lines that he didn’t want to talk anymore or anything like that?

A: We kind of changed the subject and asked him other things and came back to it.

Q: When you changed the subject did he appear more or less willing to talk to you still?

A: Yes, he was more willing to talk to me about different things.

Q: Then when you revisited the discussions about either the robberies or the car thefts was he then willing to talk to you again?

A: He would start clamming up again or not be so willing to talk.

Detective Adams obviously understood the Defendant’s intentions, but he simply ignored them by creating a diversion. Detective Schoch testified at trial that he does not believe that the right to remain silent has been invoked unless a suspect “tells me he wants to see a lawyer now or I want to see my lawyer.” Detective Schoch apparently did not recognize that the right to remain silent is separate and distinct from the right to counsel.

There are several Arizona eases on this point that merit discussion. In Bravo, it was conceded that the defendant’s statement, “Well, I don’t wanna answer any more questions,” was a clear invocation of his right to remain silent and the fact that the officers continued questioning “was a clear violation of black letter Miranda law.” Id. at 368, 373, 762 P.2d at 1322, 1327. The Defendant’s statement in this case is almost identical to the defendant’s statement in Bravo (“Well I don’t want [to] answer anymore,” compared to “Well, I don’t wanna answer any more questions”). It is very clearly an invocation of his right to remain silent. Yet, the detectives continued questioning him and, therefore, violated his Miranda rights.

In State v. Zimmerman, 166 Ariz. 325, 802 P.2d 1024 (App.1990), the defendant stated, “That is all I want to say. I am tired.” Id. at 330, 802 P.2d at 1029. The officer responded to the defendant’s statement by reminding the defendant of his rights, stating his preference to get questioning over with, and asking if the defendant would continue. Id. The defendant replied, “Yes.” Id. The court in Zimmerman held that the defendant’s statement was an ambiguous invocation because “[i]t was unclear whether he did not want to answer any more questions, period, or whether he was just tired and would answer questions after a break.” Id. The officers clarified his intent and then continued questioning. Id. In contrast to Zimmerman, the Defendant’s first invocation, “Well I don’t want [to] answer anymore,” is very clear. The rest of his statement does not suggest in any way that he was willing to answer questions.

After the Defendant invoked his right to remain silent, the detectives turned the questioning to the Defendant’s personal problems and, soon afterward, returned to questioning him about the crimes. The conversation was “flowing,” as the trial judge put it, only because the detectives made it flow despite the fact that, as Detective Adams later acknowledged, they clearly understood that the Defendant had invoked his right to remain silent. It is clear beyond any quibble that these detectives chose not to “scrupulously honor” the Defendant’s right to cut off questioning as required by Mosley and Bravo. Mosley, 423 U.S. at 104, 96 S.Ct. at 326; Bravo, 158 Ariz. at 373, 762 P.2d at 1327.

Even if we were to concede, for the sake of argument, that there was any ambiguity in the Defendant’s invocation of his right to remain silent, the confession would still not be admissible. In State v. Finehout, 136 Ariz 226, 229, 665 P.2d 570, 573 (1983), the supreme court said:

[E]ven if the defendant’s assertion is susceptible to more than one interpretation, the limit of permissible continuing interrogation immediately after the assertion would be for the sole purpose of ascertaining whether the defendant intended to invoke his right to silence, or to waive this right.

(Citation omitted.) Accord Zimmerman, 166 Ariz. at 330, 802 P.2d at 1029; State v. Clemons, 27 Ariz.App. 193, 196-97, 552 P.2d 1208, 1211-12 (1976). Detectives Adams and Schoch ignored the Defendant and briefly changed the topic but soon came back to the subject of the robberies. They did not attempt to clarify the Defendant’s intent and, after they had returned to the topic of the robberies, they also ignored the Defendant’s later remarks “I’m not going to talk worth shit anyway so it doesn’t matter to me,” and “well get me outta here man, I’m going back to the fucking jail. That’s all.... ”

We are aware of the holding of the United States Supreme Court in Davis to the effect that there is no requirement under the United States Constitution that officers clarify an ambiguous request for counsel before proceeding with questioning. See Davis, — U.S. at-, 114 S.Ct. at 2356. In State v. Eastlack, 180 Ariz. 243, 250-51, 883 P.2d 999, 1006-07 (1994), cert. denied, — U.S. -, 115 S.Ct. 1978, 131 L.Ed.2d 866 (1995), our supreme court applied the rule of Davis in the context of a purported request for counsel. Arguably, Davis undercuts the rule laid down in Finehout although Davis did not deal with the Fifth Amendment guarantee against self-incrimination. Unless the Supreme Court of Arizona changes the law, we will continue to follow the rule of Finehout.

Keeping in mind that the question whether a confession is voluntary must be decided upon the totality of circumstances, we believe that the flagrant refusal of the officers to honor the Defendant’s repeated requests to remain silent had a significant effect on procuring his confession. The detectives recited the litany of rights and then ran roughshod over them. This is coercive in itself. Further, had the officers honored the Defendant’s request, the dialogue which led to and included the threats would never have taken place.

Finally, it is appropriate to examine “the purpose and flagrancy of the official misconduct,” which led to the confession. Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975).

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.

Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974).

While the police misconduct in this ease may not be as shocking as the use of physical coercion would be, it was nonetheless a very deliberate violation of Miranda. As Justice Moeller said in Bravo: Id. at 373, 762 P.2d at 1327. It is appropriate to apply the exclusionary rule under these circumstances.

The violation in this case did not occur in any murky, ill-defined area of law where reasonable persons could differ on Miranda application. This was a clear violation of black letter Miranda law known to all qualified police officers.

HARMLESS ERROR REVIEW

The admission of an involuntary statement must be reviewed for harmless error. Arizona v. Fulminante, 499 U.S. 279, 284-85, 111 S.Ct. 1246, 1250-52, 113 L.Ed.2d 302 (1991). A constitutional error mandates reversal unless the state proves “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The State does not argue that admission of the confessions was harmless. The confessions lend considerable strength to the case against the Defendant. The fingerprint that appears on the vehicle used in the robberies is not inconsistent with the Defendant’s version of events, and the identification evidence was not especially strong. While the Defendant’s version of events seems contrived, the confessions are “probably the most probative and damaging evidence that can be admitted against” him and “may tempt the jury to rely upon that evidence alone in reaching its decision.” Fulminante, 499 U.S. at 296, 111 S.Ct. at 1258. Even if the State had a strong case without the confessions, “a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession.” Jackson, 378 U.S. at 376, 84 S.Ct. at 1780. The State has failed to sustain its burden of proving that the use of the Defendant’s confessions during the trial was harmless error. See Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

THE DEFENDANT IS ENTITLED TO A MERE PRESENCE INSTRUCTION ON RETRIAL

We will discuss the other issues raised by the Defendant on appeal which may recur on retrial. The Defendant contends that the trial court committed reversible error by refusing to give the following jury instruction:

Guilt cannot be established by a defendant’s mere presence at a crime scene or mere association with another person at a crime scene. The fact that a defendant may have been present does not, in and of itself, make a defendant guilty of the crime charged.

The Defendant testified that he was merely a passenger in the Chevrolet Blazer and that a friend, Dee, was the person who drove the vehicle and who robbed the Whataburger on June 20, 1991. The trial court recognized that the Defendant could argue mere presence as a defense, but that absent a charge of accomplice liability, it did not need to instruct the jury on mere presence.

A defendant is entitled to an instruction on any theory of defense which is recognized by law and supported by the evidence. State v. LaGrand, 152 Ariz. 483, 487, 733 P.2d 1066, 1070 (1987), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). When a defense theory is reasonably supported by the evidence, failure to instruct as to that theory is reversible error. State v. Celaya, 135 Ariz. 248, 253, 660 P.2d 849, 854 (1983). We will not, however, reverse a conviction based on a trial court’s ruling on a jury instruction unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors. See State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986).

There was a legal basis for a mere presence defense in this case. The fact that a defendant was present at the scene of a crime with knowledge of what was happening does not make him guilty of the crime. State v. Green, 117 Ariz. 92, 94, 570 P.2d 1265, 1267 (App.), aff'd in part, modified in part by, 116 Ariz. 587, 570 P.2d 755 (1977). The mere presence of a person at the time and place of a crime does not make him an aider, abettor, or principal. State v. Hernandez, 112 Ariz. 246, 247, 540 P.2d 1227, 1228 (1975). We know of no law which requires a defendant to be charged as an accomplice before a mere presence instruction can be given.

The Defendant’s version of the facts as they appear in the record also supports his mere presence defense. While a Defendant must show more than a mere scintilla of evidence, an instruction must be given if there is evidence upon which the jury could rationally sustain the defense. United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984). The Defendant told a story that added up to his mere presence at the Whataburger robbery on June 20. Whether his version was true was an issue for the jury, and, therefore, the jury should have been instructed on that defense. See id.

We do not believe that State v. Shields, 26 Ariz.App. 121, 546 P.2d 846 (1976), which the dissent relies on, compels a different result. We note first that the instruction requested in Shields was not a correct statement of the law because it told the jury that presence at the scene of the crime is not evidence of guilt. That aside, however, the court in Shields seems not to have considered the potential for confusion that might be created absent a mere presence instruction when the defendant asserts that a companion was the sole culprit.

Under the rule of Schrock, failure to give the mere presence instruction might not, without more, justify a reversal. If the State retries the Defendant on this charge and the evidence is substantially the same as it was at the first trial, this instruction should be given.

THE PHOTOGRAPHIC LINEUP WAN NOT UNDULY SUGGESTIVE

The victim of the first robbery identified the Defendant in a photographic lineup approximately one month after the robbery. She also identified the Defendant in court.⁴ The Defendant argues that the trial court erred by allowing evidence that was impermissibly suggestive because the Defendant’s photograph was lighter than the other five photographs and because it appeared that the Defendant’s face was highlighted by a spotlight.

The question at the heart of this issue is whether the lineup created a substantial likelihood of misidentification by unfairly focusing attention on the person that the police believed committed the crime. State v. Fierro, 166 Ariz. 539, 545-46, 804 P.2d 72, 78-79 (1990). An identification procedure, however, does not create a substantial likelihood of misidentification merely because of subtle differences between photographs. State v. Perea, 142 Ariz. 352, 356, 690 P.2d 71, 75 (1984).

Here, the police showed the victim six photographs. They admonished her that a photograph of the person who committed the crime might not be in the lineup and that features such as facial hair are easily changed. Nothing about the manner or sequence in which the photographs were displayed was suggestive.

The trial court recognized that the Defendant’s photograph was lighter than the other photographs, but it also found that other photographs also differed in lightness. Further, the court found that other photographs also were unique in other ways. For example, some of them were more revealing as to a subject’s eyes or showed people who were more intense looking. Consistent with Per-ea, the trial court held that these subtle differences in the photographs did not make the photographic lineup unduly suggestive. See id., 142 Ariz. at 356, 690 P.2d at 75. We have reviewed the photo lineup, and we agree with the trial court that it was not unduly suggestive.

MOOT ISSUES

The Defendant urges that his motion for acquittal should have been granted because, without the confessions, the evidence was insufficient to support the convictions. This will have to be decided on the basis of the record in the new trial. The issue regarding an enhanced sentence may not arise again. The issue raised with respect to the judge’s comment about a possible appeal in the presence of the jury will not recur on retrial.

For the foregoing reasons, the convictions for robbery and the theft of the Blazer are reversed and sentences vacated. This ease is remanded to the trial court for further proceedings as to those charges. The conviction and sentence for the theft of the station wagon and the order revoking probation are affirmed.

GRANT, J., concurs.

1 . State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990), cert. denied. 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991) (state has burden of proving confessions voluntary); State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994) (standard of review is for clear and manifest error); State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993) (evidence should be viewed in light most favorable to the state).

2 . The tape recording of the first part of the first interview was admitted into evidence but it has been lost. The recording was not initially forwarded with the record. Following a special request from the court of appeals, the records of the superior court show that the recording was sent to the court of appeals. There is no record that it was ever received.

3 . The fact that the Defendant did not testify at the voluntariness hearing does not mean that he is not entitled to relief now. Most of the improper statements made by the detectives were elicited at the hearing. The trial judge did not recognize that the refusal to honor the Defendant’s right to remain silent and the threats to inform the prosecutor of the Defendant’s refusal to cooperate were improper. The evidence presented at the hearing alone compels the suppression of the confessions. Even if this were not the case, the scope of review is not restricted to what happened at the voluntariness hearing. If the “involuntariness of a confession is conclusively demonstrated at any stage of a trial, the defendant is deprived of due process by entry of judgment of conviction without exclusion of the confession.” Blackburn v. Alabama, 361 U.S. 199, 210, 80 S.Ct. 274, 282, 4 L.Ed.2d 242 (1960).

The dissent cites West Virginia v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994), for the proposition that if the defendant does not renew the motion to suppress at the end of the trial he cannot, on appeal, refer to the trial record to support his argument that the trial court erred in denying his motion to suppress. Assuming that Farley is correct, we believe that the trial record is properly before us. As the dissent notes, even if a defendant did not renew his pretrial motion to suppress, we must still review the case for fundamental error. The dissent says that even if the confessions should not have been admitted, no fundamental error occurred because the jury found that they were voluntary. The proper procedure for weighing voluntariness is set out in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The threshold voluntariness inquiry is for the court and the defendant can reargue the matter to the jury. Considering Jackson and Blackburn together, it is clear that when it appears at any stage of the proceedings that a confession is involuntary, it is the trial judge’s duty to exclude it from evidence. For all the reasons we have set forth in this opinion, we believe that the admission of the Defendant's confessions which followed repeated refusals to honor his invocation of his right to remain silent and which were based on threats constitutes a denial of due process and is fundamental error. If that were not enough, and again assuming that Farley should apply, we can posit no reason for defense counsel’s failure to renew the motion to suppress at trial. His failure to do so would raise more than a colorable claim of ineffective assistance. It would, in fact, be ineffective assistance of counsel and the Defendant would be entitled to a new trial on that ground.

4 . The clerk from the second robbery could not identify the Defendant in the photographic lineup. The clerk from the third robbery testified that she could not identify the Defendant as the robber at a show-up identification approximately thirty minutes after the robbery. That clerk never viewed the photographic lineup.