Does the Defendant's refusal to allow a tape recorder to be recorded during an interview constitute an invocation of his right to remain silent?

Defendant asserts his remarks showed he was unwilling to "freely and completely" discuss his case with the police. (See People v. Burton (1971) 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Randall (1970) 1 Cal.3d 948, 956, 83 Cal.Rptr. 658, 464 P.2d 114.) We find the foregoing cases inapposite. They recite the familiar rule that police interrogation must [6 Cal.4th 26] cease once the defendant, by words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult with an attorney. Neither case, however, stands for the proposition that a defendant automatically invokes those rights by imposing conditions (such as "no tape recorder") governing the conduct of the interview.

Defendant contends that prior cases have held a suspect's refusal to permit a tape-recorded interview constitutes an invocation of his right to remain silent. (See People v. Hinds (1984) 154 Cal.App.3d 222, 235-236, 201 Cal.Rptr. 104; People v. Nicholas (1980) 112 Cal.App.3d 249, 268, 169 Cal.Rptr. 497.) In both these cases, however,

Page 605

In the present case, by contrast, the trial court found no such clear intent on defendant's part. Although defendant asked that the proceedings go "off the record" at various points during the interviews, he expressed no general expectation of privacy covering the entire interview. (We discuss in a subsequent part of this opinion defendant's separate contention that his request for "off-the-record" treatment required the officers to terminate further questioning.) As another recent case observes, "it was for the trial court to determine whether [the defendant's] refusal to ... be recorded was in fact an invocation of his right to silence. The court found [the defendant] in fact had understood his rights and waived them, and his conversations with the officers were therefore voluntary. Such a conclusion was reasonable, and we will not disturb it on this appeal. [Citations.]" (People v. Maier (1991) 226 Cal.App.3d 1670, 1678, 277 Cal.Rptr. 667.)