State v. Tiedemann

2007 UT 49
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20050676
Plaintiff and Appellee,
v.
F I L E D
Edgar Tiedemann,
Defendant and Appellant. 	June 29, 2007
---
Third District, Salt Lake
The Honorable Judith S. Atherton
No. 021912452
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix, Asst.
Att’y Gen., T. Langdon Fisher, William Kendall, Salt
Lake City, for plaintiff
Linda M. Jones, Heidi Buchi, Heather Brereton,
Patrick W. Corum, Salt Lake City, for defendant
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	Edgar Tiedemann is charged with three counts of murder,
a first degree felony. 	This court granted Tiedemann’s petition
for interlocutory appeal from two pretrial orders. 	First, he
appealed the pretrial order denying his motion to suppress
statements allegedly obtained in violation of the state and
federal constitutions and Miranda v. Arizona, 384 U.S. 436
(1966). 	Second, Tiedemann appealed the order denying his motion
to dismiss based on the State’s destruction of potentially
exculpatory evidence.
BACKGROUND
¶2 	The State alleges that on November 2, 1991 Tiedemann
shot and killed Susan Sessions, Charles Timerberman, and Scott

1 Scott Bunnell died in February 2001 due to the injuries he
sustained on November 2, 1991. 	Accordingly, with respect to Mr.
Bunnell, the original charge for attempted murder was changed to
murder.
2 Although the transcript of the interrogation recorded
Tiedemann’s response as being “inaudible,” a viewing of the video
reveals that Tiedemann, with head down and in a muffled tone,
said “ya.”
No. 20050676 	2
Bunnell. 1 	Sessions, Timerberman, and Bunnell were staying at
Tiedemann’s West Valley trailer home for the night. 	Following
the shootings, the police took Tiedemann into custody where two
police officers, Detective Ron Edwards and Sergeant Ed Spann,
questioned him about the killings. 	In the course of questioning,
Tiedemann confessed to the murders.
¶3 	The interrogation was videotaped and transcribed in
part. 	The officers began the interrogation by reading Tiedemann
his Miranda rights. 	When asked if he understood his rights,
Tiedemann answered in the affirmative. 2 	The officers then asked
Tiedemann if he understood that he could stop the questioning at
anytime, to which he responded “ya.” 	The officers then asked
Tiedemann if he still wished to speak with them at that time, and
Tiedemann agreed. 	When asked by the officers if he was
intoxicated, Tiedemann stated that he was intoxicated on Toluene,
a paint thinner. 	The officers proceeded with the interrogation.
¶4 	As the officers continued the questioning, they asked
Tiedemann about the shootings. 	Specifically, Detective Edwards
asked, “What happened to [Ms. Sessions]?” 	Tiedemann answered, “I
don’t want to talk about it.” 	Detective Edwards responded, “You
don’t want to talk about it?” and Tiedemann responded, “No.”
Sergeant Spann, attempted to clarify exactly what Tiedemann did
not want to talk about by asking, “What is it that you don’t want
to talk about?” 	Before Tiedemann responded, 	Sergeant Spann
continued with, “You said murders in West Valley, where in West
Valley?”
¶5 	Sergeant Spann tried again to clarify Tiedemann’s
response by asking, “[w]hat part do you and what part don’t you
want to talk to us about?” 	Again, before Tiedemann clarified,
Detective Edwards asked, “Edgar do you remember me reading [you
your] rights earlier and you signing a waiver for us to search
your home?” 	Tiedemann answered, “Ya.” 	Detective Edwards
continued questioning Tiedemann about the murders.
¶6 	During the course of the interrogation, Tiedemann
stated that he had “all kinds” of “mental problems.” 	He informed
the officers of a stroke he had in 1988. 	He told the officers,

3 	No. 20050676
“I think I’m Adolf Hitler.” 	He also claimed that “the devil”
told him to shoot the victims. 	At the end of the interrogation,
Tiedemann affirmed that the police had not threatened him or
promised anything, but that he made the statements of his own
free will. 	The entire interrogation lasted less than one hour.
¶7 	The State originally charged Tiedemann with two counts
of aggravated murder and one count each of attempted aggravated
murder, aggravated kidnaping, and aggravated sexual assault. 	The
charges were dismissed seven months later after Tiedemann was
declared incompetent to stand trial. 	At that time, the State did
not anticipate refiling charges because, based on his competency
evaluation, Tiedemann was unlikely to ever be found competent to
stand trial. 	Tiedemann was then civilly committed to the Utah
State Hospital.
¶8 	Two years later, in April 1994, the state evidence
custodian notified the investigating officer that physical
evidence from the case would be destroyed unless an objection was
filed within thirty days. 	The officer made no objection, and the
evidence was destroyed. 	The destroyed evidence included two
revolvers, a Code R kit, a victim’s wallet, heroin, an audio
tape, a blood specimen, a make-up kit, drug paraphernalia,
various items of victims’ clothing, bedding, a bone fragment
found on one victim’s bed, a bottle of green liquid, a one gallon
can of Toluene, .38 and .22 caliber bullets, bullet fragments,
shell casings, hair and saliva samples, and gunshot residue from
Tiedemann and one of the victims.
¶9 	Not all of the evidence was destroyed. 	The evidence
given to the defense in this proceeding included autopsy photos
and reports on all three victims, toxicology reports on the
victims, a rape report from St. Mark’s Hospital, photos taken of
weapons and ammunition, firearm analysis reports, transcripts of
interviews taken from one of the shooting victims and the sexual
assault victim, witness statements, a videotape of the interview
with the sexual assault victim, and a videotape and photos of the
crime scene.
¶10 	In October 2002, the district attorney’s office was
notified that Tiedemann was going to be released from the Utah
State Hospital. 	The State subsequently recharged him with three
counts of murder, declining to refile the other felony counts.
Following a preliminary hearing, the trial court found Tiedemann
competent to stand trial and denied his pretrial motions to
suppress his testimony and to dismiss the case due to destruction
of evidence. 	This court granted Tiedemann’s petition for
interlocutory appeal from both rulings. 	We have jurisdiction
pursuant to Utah Code section 78-2-2(3)(h) (2002).

No. 20050676 	4
STANDARD OF REVIEW
¶11 	In reviewing the trial court’s denial of Tiedemann’s
Motion to Suppress Illegally Obtained Statements, we review the
trial court’s factual findings for clear error and we review its
conclusions of law for correctness. 	State v. Troyer, 910 P.2d
1182, 1186 (Utah 1995).
¶12 	Whether the State’s destruction of potentially
exculpatory evidence violates due process is a question of law
that we review for correctness. 	“However, because this question
requires application of facts in the record to the due process
standard, we incorporate a clearly erroneous standard for the
necessary subsidiary factual determinations.” 	Chen v. Stewart,
2004 UT 82, ¶ 25, 100 P.3d 1177.
ANALYSIS
¶13 	This case presents two issues: 	first, whether
Tiedemann validly waived his Miranda rights and, if so, whether
he subsequently, unambiguously invoked his right to remain
silent; and second, whether the destruction of evidence in this
case violated Tiedemann’s due process rights under the state and
federal constitutions. 	The court addresses these issues as
follows: 	Part I of this opinion treats the Motion to Suppress
the Confession as it relates to (A) whether Tiedemann waived his
right to remain silent, and (B) whether Tiedemann subsequently
reinvoked his right to remain silent; Part II deals with the
destruction of evidence. 	This opinion contains the majority as
to Part IA. 	The majority opinion of the court as to Part IB is
contained in the separate opinion of Justice Durrant, joined by
Justices Nehring and Parrish. 	The dissenting view in Part IB of
this opinion is mine alone. 	Part II of this opinion contains the
majority view of the court on the destruction of evidence
question. 	In a separate opinion, Justice Wilkins dissents as to
Part IB and as to Part II.
I. 	MOTION TO SUPPRESS THE CONFESSION
¶14 	We first address whether the district court was correct
in denying Tiedemann’s request to suppress his confession.
Tiedemann argues that he never gave a voluntary waiver of his
right to remain silent, but rather, that the police took
advantage of his known mental impairment to improperly evoke a
waiver and confession from him. 	Tiedemann also argues that, even
if he gave a valid initial waiver, he later unambiguously raised
his right to remain silent, and the officers failed to honor that
request in violation of his due process rights.

5 	No. 20050676
¶15 	This court addressed the threshold requirements for a
valid waiver of Miranda rights and a subsequent invocation of
those rights in State v. Leyva, 951 P.2d 738 (Utah 1997). 	Leyva
firmly established that “[t]he questions of waiver of Miranda
rights and of postwaiver invocation of those rights are entirely
separate.” 	Id. at 743. 	We therefore address Tiedemann’s initial
waiver and the subsequent raising of his right to remain silent
separately. 	If the initial waiver was not valid, the statements
must be suppressed. 	If, however, the initial waiver was valid,
we must determine if Tiedemann later validly invoked his right to
remain silent.
A. 	Tiedemann’s Initial Waiver Was Valid
¶16 	With regard to the initial waiver of Miranda rights,
this court has noted, in accordance with federal case law, that a
“‘heavy burden’ rests on law enforcement officers ‘to demonstrate
that the defendant knowingly and intelligently waived’ his
Miranda rights.” 	Leyva, 951 P.2d at 743 (quoting Miranda v.
Arizona, 384 U.S. 436, 475 (1966)). 	The burden therefore rests
on the State to show that a suspect’s waiver of Miranda rights
was clear and unambiguous, as well as voluntary.
¶17 	In this case, the interrogating officers read Tiedemann
his rights and asked him if he understood them. 	Tiedemann,
although appearing distant and with his head lowered, answered in
the affirmative. 	Further, Tiedemann responded in the affirmative
to each of the following questions: 	(1) “Do you understand that
you can stop this questioning at anytime?” (2) “If you cannot
afford an attorney, we will provide one for you. 	Do you
understand that?” and (3) “Do you still wish to speak to us at
this time?”
¶18 	In its Memorandum Decision, the district court
concluded that the officers did not use coercive tactics to gain
the Miranda rights waiver. 	Having reviewed the transcript and
video of the interrogation, we agree. 	The officers did not use
“false friend” or “half truth” tactics. 	They made no threats or
promises. 	The interrogation was less than one hour in length.
The officers did not deny any special requests by the defendant.
We could not find a single instance in which the officers
mistreated Tiedemann or acted unethically in any way. 	Although
Tiedemann was admittedly intoxicated at the time and was later
found to be incompetent to stand trial, his mental condition
alone, absent some abuse by the officers, is not enough to render
his waiver invalid. 	See Colorado v. Connelly, 479 U.S. 157, 167
(1986) (“[C]oercive police activity is a necessary predicate to
the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth Amendment.”);
State v. Rettenberger, 1999 UT 80, ¶ 17, 984 P.2d 1009 (“Although

3 As this court noted in Leyva, because we have never
established the existence of Miranda protections under the Utah
Constitution, issues concerning Miranda are analyzed using
federal law and the provisions of the United States Constitution.
Leyva, 951 P.2d at 743.
No. 20050676 	6
. . . a determination of involuntariness cannot be predicated
solely upon a defendant’s mental state, his mental state is
relevant to the extent it made him more susceptible to mentally
coercive police tactics.” (internal quotation marks omitted)).
¶19 	Because Tiedemann’s waiver was clear and unambiguous,
and because he was not coerced in any way, we conclude that
Tiedemann effectively waived his Miranda rights.
B. 	Tiedemann Unambiguously Reasserted
His Right to Remain Silent
¶20 	Because Tiedemann validly waived his Miranda rights, in
order for this court to reverse, I believe we must conclude that
his later attempt to invoke his right to remain silent was
unambiguous. 	The right to terminate questioning is a “critical
safeguard” of the right to remain silent guaranteed by the Fifth
Amendment. 3 	Michigan v. Mosley, 423 U.S. 96, 103 (1975). 	In
Miranda, the United States Supreme Court underscored the
importance of a suspect’s right to end an interrogation and
provided general operational guidance when it stated that
questioning must stop once a suspect “indicates in any manner, at
any time . . . during questioning, that he wishes to remain
silent.” 	Miranda v. Arizona, 384 U.S. 436, 473-74 (1966); see
also Mosley, 423 U.S. at 100.
¶21 	The more difficult question, one left unanswered in
Miranda, is how law enforcement officials are to know when a
suspect has given a sufficient “indication” of a wish to remain
silent. 	The United States Supreme Court answered this question
in Davis v. United States, 512 U.S. 452 (1994). 	Mr. Davis was
accused of beating a sailor to death with a pool cue after the
sailor had reneged on a billiards wager. 	Id. at 454. 	After
waiving his Miranda rights and submitting to an hour and a half
of interrogation, Mr. Davis mused, “Maybe I should talk to a
lawyer.” 	Id. at 455. 	The Court concluded that this statement
was too equivocal to serve as an invocation of Mr. Davis’ right
to counsel. 	Id. at 462. 	The Court held that a suspect’s
reassertion of the right to counsel “‘requires, at a minimum,
some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney.’” 	Id.
at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)).
Mr. Davis’ choice of the word “maybe” injected sufficient

7 	No. 20050676
equivocation into his comment to allow the officers to continue
questioning him.
¶22 	I measure Tiedemann’s statement “I don’t want to talk
about it” against the core Davis test as modified to encompass
the right to remain silent. 	I find it impossible to extract
ambiguity from the following critical question and answer
exchange between Detective Edwards and Tiedemann:
Det. Edwards: 	What happened to [Ms.
Sessions]?
Tiedemann: 	I don’t want to talk about it.
Det. Edwards: 	You don’t want to talk about
it?
Tiedemann: 	No.
¶23 	I find Tiedemann’s statement, “I don’t want to talk
about it,” and subsequent confirmation of his desire not to talk
about it an unambiguous invocation of his right to remain silent.
Contrary to the view expressed by Justice Wilkins, I believe that
this pivotal exchange between Detective Edwards and Tiedemann
clearly passed the Davis test. 	The law cannot deprive defendants
of their constitutional rights based on failure to use precise
terminology. 	Officers need to be alert to various statements and
behaviors expressed by defendants that meet the required
threshold of clarity. 	In my view, Tiedemann met his burden to
unambiguously invoke his constitutional right to remain silent
with his statement “I don’t want to talk about it,” followed by
repeated silence in response to subsequent questions.
¶24 	What remains ambiguous, however, is the scope of
Tiedemann’s invocation. 	The antecedent of the pronoun “it” is
unclear. 	“It” could refer to “what happened to [Ms. Sessions];”
or “it” could refer to “[t]he murders out there at West Valley,”
a response Tiedemann made to a question only moments before the
exchange quoted above; or “it” could refer to all of the events
related to the murders. 	The United States Supreme Court has
extended to criminal suspects “[t]hrough the exercise of [this]
option to terminate questioning” the right to “control the time
at which questioning occurs, the subjects discussed, and the
duration of the interrogation.” 	Mosley, 423 U.S. at 103-04. 	I
recognize that interrogating officers who know that a suspect has
reclaimed his or her right to remain silent but do not know the
scope of the reclamation have a difficult line to walk. 	The
difficulty arises because questions posed by interrogators in
this setting will seldom elicit answers that clarify the scope of
the suspect’s right to remain silent without also including
inculpatory statements. 	This problem may be solved by
disqualifying from consideration any inculpatory statements made
in response to questions posed by interrogators who are in the

4 The transcript mistakenly substitutes “why” for “what.”
No. 20050676 	8
process of attempting to clarify the scope of a reasserted right
to remain silent. 	Such a rule will relieve law enforcement of
the daunting task of formulating questions that would clarify the
scope of the Miranda invocation but not invite inculpatory
statements.
¶25 	Given Tiedemann’s unambiguous invocation of his right
to remain silent, but accompanied by ambiguity as to the scope of
such an invocation, I conclude that the police officers were
entitled either to stop their interrogation completely or to
properly seek clarification regarding the scope of Tiedemann’s
invocation. 	Therefore, their question “What don’t you want to
talk about?” 4 was legitimate. 	However, on the two occasions
Tiedemann was asked to clarify what “it” was that he did not want
to talk about, he was denied the opportunity to answer. 	In the
first instance, Sergeant Spann asked Tiedemann two questions at
once, “What is it that you don’t want to talk about?” and “You
said murders in West Valley, where in West Valley?” 	Tiedemann
answered only the second question regarding the location of the
murders. 	In the second instance, Sergeant Spann asked Tiedemann
“[w]hat part do you and what part don’t you want to talk to us
about?”, but before Tiedemann answered, Detective Edwards asked,
“Edgar[,] do you remember me reading you[r] rights earlier and
you signing a waiver for us to search your home?” 	Tiedemann
answered only Detective Edward’s question, and Detective Edwards
continued asking Tiedemann about the shootings.
¶26 	I agree with Justice Wilkins that “the officers were
careful to inquire as to what Tiedemann did, and did not, want to
talk about.” 	Infra ¶ 61. 	But, in my view, the officers’ actions
demonstrated that they recognized that Tiedemann wished to invoke
his right to remain silent. 	When their careful inquiry failed to
elicit clarity regarding the scope of Tiedemann’s invocation,
Justice Wilkins concludes, albeit based on his view that
Tiedemann’s invocation was ambiguous, that “the officers properly
continued questioning.” 	Id. 	The better conclusion, in my view,
is that the officers should have respected Tiedemann’s invocation
and ceased their interrogation when their attempts to clarify the
scope of the invocation were unsuccessful.
¶27 	With respect to the pauses following questions posed by
the officers during the interrogation as described by Justice
Wilkins, I agree that the “officers allowed ample time for Mr.
Tiedemann to respond” and that he “failed to do so.” 	Infra ¶ 63.
In my view, however, Tiedemann’s failure to respond underscored
his unambiguous invocation of his right to remain silent.

5 For example, the majority opinion would admit Tiedemann’s
answer to the question “Why did you shoot them?” found on page 3
of the transcript, because the question “did not reference a
particular victim.” 	Infra ¶ 56. 	However, the same question,
when asked on page 34 of the transcript would not be admitted
because it becomes clear from Tiedemann’s answer, “I don’t know,”
and the very next question, “Why did you shoot Scotty and Chuck
then?” that the officers were referencing all three of the
victims in the prior question. 	I question the wisdom of
requiring the trial court to undertake this sort of linguistic
interpretation.
9 	No. 20050676
¶28 	I also wish to comment on the majority’s interpretation
of the word “it” in Tiedemann’s statement “I don’t want to talk
about it.” 	As amply illustrated by the fact that there are three
separate opinions on this particular issue, I think this court’s
ability to accurately determine the meaning of the pronoun “it”
is limited. 	In addition, I believe that the majority’s
instruction to the district court to retroactively apply its
interpretation through a systematic question-by-question parsing
of the interrogation transcript will be difficult and confusing. 5
¶29 	Following Tiedemann’s invocation of his right to remain
silent and before the officers continued their interrogation,
the officers should have clarified what, if anything, Tiedemann
was willing to talk about. 	Having failed to do so, the officers
were not, in my view, entitled to continue their interrogation.
Because I conclude that Tiedemann was denied the opportunity to
clarify the scope of his unequivocal invocation of his Miranda
rights, I also conclude that all of Tiedemann’s interrogation
subsequent to his statement “I don’t want to talk about it”
should be suppressed, and therefore dissent from the opinion of
Justice Durrant for the majority of the court on this question.
II. 	DESTRUCTION OF EVIDENCE
¶30 	Tiedemann argues that the State’s destruction of
evidence is a violation of Federal Due Process under the Fifth
Amendment because the evidence may have been exculpatory, no
comparable evidence still exists, and the destruction was done in
bad faith. 	Tiedemann therefore asks that the trial court ruling
be reversed and the charges dismissed.
¶31 	In the alternative, Tiedemann asks this court to look
to article I, section 7 of the Utah Constitution and adopt an
analysis that considers several factors, including the State’s
culpability in destroying the evidence, the significance of the
evidence destroyed, and the prejudice of the destruction to the
defendant.

No. 20050676 	10
A. 	State Constitutional Standard
¶32 	Tiedemann’s brief in this matter clearly raises and
extensively briefs state law claims. 	The State argues that
Tiedemann failed to preserve his state law arguments before the
trial court. 	The State further contends:
This Court should also decline to
address defendant’s state constitutional
claim because he has not adequately developed
it using “historical and textual evidence,
sister state law, and policy arguments in the
form of economic and sociological materials
to assist [the Court] in arriving at a proper
interpretation of the provision in question.”
Society of Separationists, Inc. v. Whitehead,
870 P.2d 916, 921 n.6 (Utah 1993). 	While
defendant does cite to sister state law, he
fails to analyze his claim within “the unique
context in which Utah’s constitution
developed.” 	Indeed, he does not even mention
that the language of the federal and state
due process clauses are identical or explain
why, given that circumstance, the clauses
should be interpreted differently.
(first alteration in original) (quoting State v. Bobo, 803 P.2d
1268, 1272 n.5 (Utah Ct. App. 1990)). 	We have quoted the State’s
argument at length because we wish to address what we view as a
fundamental misconception of the logic of and proper approach to
state constitutional law development.
¶33 	First, the preservation argument is clearly
inapplicable here. 	The State concedes in its brief that
Tiedemann did in fact request that the trial court decide the
question as a matter of state law, and the trial court’s
memorandum decision indicates as much. 	Second, the State’s
position that the analysis of federal constitutional provisions
constitutes the default interpretive stance of this court vis-a-
vis state law is not correct. 	The fact that the state and
federal constitutional language is identical does not require a
claimant to create some threshold for independent analysis of the
state language. 	This court, not the United States Supreme Court,
has the authority and obligation to interpret Utah’s
constitutional guarantees, including the scope of due process,
and we owe federal law no more deference in that regard than we
do sister state interpretation of identical state language. 	See,
e.g., State v. DeBooy, 2000 UT 32, ¶ 12, 996 P.2d 546
(recognizing that article I, section 14 of the Utah Constitution
and the Fourth Amendment contain identical language, but stating

11 	No. 20050676
that the court “will not hesitate to give the Utah Constitution a
different construction where doing so will more appropriately
protect the rights of this state’s citizens”). 	Furthermore, it
is part of the inherent logic of federalism that state law be
interpreted independently and prior to consideration of federal
questions. 	Hans A. Linde, First Things First: Rediscovering the
States’ Bills of Rights, 9 U. Balt L. Rev. 379, 383-84 (1980);
see also West v. Thomson Newspapers, 872 P.2d 999, 1006 (Utah
1994) (“By looking first to state constitutional principles, we
also act in accordance with the original purpose of the federal
system.”). 	This is so because the State cannot, conceptually,
deny rights guaranteed by the federal constitution if the state
action complained of is unlawful as a matter of state law. 	Thus,
if state statutes, rules, or constitutional principles preclude
the state action in question, there is no need to assess the
federal constitutionality of that action. 	See Linde, supra at
383. 	This analytical approach is known as the “primacy model,”
West, 872 P.2d at 1005-07, and we have endorsed it in a number of
cases, see, e.g., id. at 1006-07, 1020-21 (adopting the primacy
model in the defamation context); State v. Ramirez, 817 P.2d 774,
781-84 (Utah 1991) (addressing defendant’s claim under article I,
section 7 of the Utah Constitution before proceeding to his
claims under the Fourteenth Amendment to the United States
Constitution); Amax Magnesium Corp. v. Tax Comm’n, 796 P.2d 1256,
1261 (Utah 1990) (“[I]f the challenged statute cannot withstand
attack under the state constitution, there is no reason to reach
the federal question.”). 	We have, however, historically relied
on other approaches, usually because of the way in which such
issues have been framed by the parties. 	See, e.g., State v.
Larocco, 794 P.2d 460, 464-65, 471 (Utah 1990) (plurality
opinion) (conducting a federal constitutional analysis of the
defendant’s unlawful search claim before conducting a state
constitutional analysis, and concluding that the search was
reasonable under the federal constitution but not under the state
constitution).
¶34 	Federal constitutional discourse and vocabulary have
dominated constitutional criminal procedure cases for so long
that it continues to be difficult for lawyers to shift their
perspectives in state cases. 	A recent example of such
difficulties in Utah was commented on by Justice Stevens in his
separate opinion in Brigham City v. Stuart, 126 S. Ct. 1943
(2006)(Stevens, J., concurring). 	That case was on appeal from
this court’s review of a search and seizure question in Brigham
City v. Stuart, 2005 UT 13, 122 P.3d 506, rev’d, 126 S. Ct. 1943
(2006). 	In our opinion, we noted the line of Utah cases in which
we have concluded that Utah’s search and seizure provisions
(which are identical to those in the federal constitution)
provide “a greater expectation of privacy than the Fourth
Amendment as interpreted by the United States Supreme Court.”

No. 20050676 	12
Id. ¶¶ 10-11. 	We criticized the failure of the appellant to
raise and argue the state claims, and observed: 	“Where the
parties do not raise or adequately brief state constitutional
issues, our holdings become inevitably contingent.” 	Id. ¶ 12.
¶35 	The United States Supreme Court granted certiorari “in
light of differences among state courts and the federal courts of
appeals concerning the appropriate Fourth Amendment standard
governing warrantless entry by law enforcement in an emergency
situation.” 	Brigham City, 126 S. Ct. at 1947. 	In his separate
opinion, Justice Stevens addressed what he viewed as the futility
of the Court’s exercise in granting certiorari and resolving the
federal question:
Our holding today addresses only the
limitations placed by the Federal
Constitution on the search at issue; we have
no authority to decide whether the police in
this case violated the Utah Constitution.
The Utah Supreme Court, however, has
made clear that the Utah Constitution
provides greater protection to the privacy of
the home than does the Fourth Amendment. 	And
it complained in this case of respondents’
failure to raise or adequately brief a state
constitutional challenge, thus preventing the
state courts from deciding the case on
anything other than Fourth Amendment grounds.
. . . 	The fact that this admonishment and
request came from the Utah Supreme Court in
this very case not only demonstrates that the
prosecution selected the wrong case for
establishing the rule it wants, but indicates
that the Utah Supreme Court would probably
adopt the same rule as a matter of state
constitutional law that we reject today under
the Federal Constitution.
Id. at 1950 (Stevens, J., concurring) (emphasis added) (internal
citations omitted).
¶36 	The State’s resistance to this court’s treatment of the
state constitutional issues raised in this case reflects the same
short-sightedness described by Justice Stevens in Brigham City.
The federal law on this question will serve only as a contingent
rule in Utah until this court has settled the primary question of
state law, and all parties, including the State, are well-advised
to assist this court in its obligations to interpret that law.

6 We likewise reject the court of appeals’ suggestion in
State v. Bobo, 803 P.2d 1268 (Utah Ct. App. 1990), that an
attorney must follow a set formula in order to adequately brief a
state constitutional issue. 	Id. at 1273 n.5 (instructing
attorneys wishing to raise state constitutional issues in their
briefs to (1) analyze “the unique context in which Utah’s
constitution developed”; (2) “demonstrate that state appellate
courts regularly interpret even textually similar state
constitutional provisions in a manner different from federal
interpretations of the United States Constitution”; and (3) cite
“authority from other states supporting the particular
construction urged by counsel”).
13 	No. 20050676
¶37 	Furthermore, we reject the State’s suggestion in its
brief that there is a formula of some kind for adequate framing
and briefing of state constitutional issues before district
courts and this court. 6 	We have on numerous occasions cited with
favor the traditional methods of constitutional analysis. 	See,
e.g., State v. Gardner, 947 P.2d 630, 633 (Utah 1997) (“In
interpreting the state constitution, we look primarily to the
language of the constitution itself but may also look to
‘historical and textual evidence, sister state law, and policy
arguments in the form of economic and sociological materials to
assist us in arriving at a proper interpretation of the provision
in question.’” (quoting Soc’y of Separationists v. Whitehead, 870
P.2d 916, 921 n.6 (Utah 1993))). 	We have also frequently noted
that mere mention of state provisions will not suffice. 	We
disagree, however, with the trial court’s suggestion in its
Memorandum Decision that Tiedemman’s failure to offer analysis of
the “unique context in which Utah’s Constitution developed [or to
show] why this State’s Constitution should be interpreted
differently than the Fifth and Fourteenth Amendments of the
United States Constitution” precluded treatment of the state
claim. 	Historical arguments may be persuasive in some cases, but
they do not represent a sine qua non in constitutional analysis.
Further, we do not require some showing that federal analysis is
flawed in order to undertake independent state interpretation,
although we have occasionally used such arguments to bolster our
conclusions. 	See, e.g., Larocco, 794 P.2d at 467-70 (plurality
opinion) (recognizing “significant confusion” in federal search
and seizure law and taking the opportunity to simplify search and
seizure rules under the Utah Constitution by interpreting article
I, section 14 to provide greater privacy protections with regard
to automobile searches than the federal constitution); State v.
Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988) (“[C]hoosing to give
the Utah Constitution a somewhat different construction [than the
federal constitution] may prove to be an appropriate method for
insulating the state’s citizens from the vagaries of inconsistent
interpretations given to the fourth amendment by the federal
courts.”). 	In theory, a claimant could rely on nothing more than

No. 20050676 	14
plain language to make an argument for a construction of a Utah
provision that would be different from the interpretation the
federal courts have given similar language. 	Independent analysis
must begin with the constitutional text and rely on whatever
assistance legitimate sources may provide in the interpretive
process. 	There is no presumption that federal construction of
similar language is correct.
¶38 	In this case, Tiedemann clearly raised the state
constitutional question and submitted arguments, albeit ones the
trial court found unpersuasive, below. 	Likewise, in his brief on
appeal, Tiedemann has devoted a separate section of his brief to
the issue of state due process requirements in the context of
destruction of evidence by the State. 	He has cited Utah due
process cases and decisions from other state courts construing
their due process requirements, including a number of states that
have rejected the reasoning of the United States Supreme Court in
interpreting federal law. 	Given our call in Brigham City for
litigants to participate in the development of state
constitutional principles, we should not decline to treat the
claims properly raised here.
B. 	State Due Process and Destroyed Evidence
¶39 	The question before us is whether a defendant must show
bad faith on the part of the State in the loss or destruction of
evidence before he may seek a remedy under state law.
¶40 	It is a matter of clear Utah law that criminal
defendants are entitled to information possessed by the State to
aid in their defense. 	Rule 16 of the Utah Rules of Criminal
Procedure imposes broad obligations on prosecutors to produce
such information or make it available to a defendant. 	Utah R.
Crim. P. 16. 	We have on numerous occasions enforced its
requirements, and we noted in State v. Knight:
The prosecutor’s good faith should not
have had any impact on the trial court’s
determination of whether the prosecutor had
violated his discovery duties. . . . 	[T]he
prosecutor’s good faith ignorance does not
excuse non-disclosure. 	If any weight were
given to good faith ignorance, it would only
encourage after-the-fact justifications for
nondisclosure.
734 P.2d 913, 918 n.5 (Utah 1987).
¶41 	We have identified several factors under rule 16 to
guide a trial court’s decision on a motion to exclude prosecution

15 	No. 20050676
evidence because of a failure to fully disclose. 	State v.
Kallin, 877 P.2d 138, 143 (Utah 1994). 	These factors are also
relevant to a motion, like the one here, to dismiss charges for
destruction of evidence. 	The nonexclusive factors we consider
under rule 16 are
(1) the extent to which the prosecution’s
representation [of the existing evidence] is
actually inaccurate, (2) the tendency of the
omission or misstatement to lead defense
counsel into tactics or strategy that could
prejudice the outcome, (3) the culpability of
the prosecutor in omitting pertinent
information or misstating the facts, and
(4) the extent to which appropriate defense
investigation would have discovered the
omitted or misstated evidence.
Id. 	Our approach under rule 16 should govern the destruction of
evidence, and the culpability or bad faith of the state should be
only one consideration, not a bright line test, as a matter of
due process under article 1, section 7 of the Utah Constitution.
¶42 	Justice Stevens’ separate concurrence in Arizona v.
Youngblood, 488 U.S. 51 (1988), argued that “there may well be
cases in which the defendant is unable to prove that the State
acted in bad faith but in which the loss or destruction of
evidence is nonetheless so critical to the defense as to make a
criminal trial fundamentally unfair.” 	Id. at 61. 	We agree with
this assessment. 	Many states that have explored this question
under their state due process guarantees have also agreed. 	See,
e.g., Thorne v. Dep’t of Pub. Safety, 774 P.2d 1326, 1331 (Alaska
1989) (construing the due process clause of the Alaska
Constitution to not require a showing of bad faith); State v.
Morales, 657 A.2d 585, 594-95 (Conn. 1995) (concluding that the
state due process clause does not have the same meaning as the
federal due process clause and that it requires a balancing of
the materiality of missing evidence, the reasons for its
unavailability, the likelihood of mistake by witnesses or juries,
and the prejudice to the defendant); Hammond v. State, 569 A.2d
81, 87 (Del. 1989) (noting that rules regarding preservation of
evidence are generally matters of state law and reaffirming prior
test for balancing degree of negligence or bad faith, importance
of missing evidence, and sufficiency of other evidence in support
of conviction); State v. Matafeo, 787 P.2d 671, 673 (Haw. 1990)
(recognizing that due process inquiry must go beyond Youngblood
because, in some cases, the state may destroy evidence, in good
or bad faith, that is so critical to the defense that it makes
the rule unfair); Commonwealth v. Henderson, 582 N.E.2d 496, 496-
97 (Mass. 1991) (holding that Massachusetts’ due process rule is

7 Ironically, Arizona is one of the states that has adopted
a bright-line bad faith requirement as a matter of state due
process. 	On remand from the United States Supreme Court in the
Youngblood case, the Arizona Court of Appeals held that “the Due
Process Clause of the Arizona Constitution provides greater
protection than its federal counterpart.” 	State v. Youngblood,
790 P.2d 759, 762 (Ariz. Ct. App. 1989) (citation omitted). 	The
Arizona Supreme Court disagreed. 	In State v. Youngblood, 844
P.2d 1152 (Ariz. 1993), the court relied on prior state law,
including the availability of a jury instruction permitting
inferences from missing material evidence favorable to the
defendant, and held that “absent bad faith on the part of the
state, the failure to preserve evidentiary material which could
have been subjected to tests, the results of which might have
exonerated the defendant, does not constitute a denial of due
process of law under the Arizona Constitution.” 	Id. at 1158.
Other states adopting a bad faith rule as a matter of state
law include California, People v. Cooper, 809 P.2d 865, 886 (Cal.
1991) (rejecting defendant’s argument that the court should not,
as a matter of state law, follow federal cases regarding
destruction of evidence issues and instead applying Youngblood to
defendant’s claims); Kentucky, Collins v. Commonwealth, 951
S.W.2d 569, 572-73 (Ky. 1997) (declining to reject Youngblood
approach based on defendant’s argument that the Kentucky
Constitution used different wording than the federal
constitution), and North Carolina, State v. Drdak, 411 S.E.2d
604, 608 (N.C. 1992) (rejecting defendant’s destruction of
evidence claim under the North Carolina Constitution because he
failed to show bad faith).
No. 20050676 	16
stricter than the federal rule and requires balancing of the
government’s culpability, materiality of the evidence, and
potential prejudice to the defendant); State v. Ferguson, 2
S.W.3d 912, 914 (Tenn. 1999) (holding that “the due process
principles of the Tennessee Constitution are broader than those
enunciated in the [federal] Constitution” and “fundamental
fairness . . . requires that the State’s failure to preserve
evidence that could be favorable to the defendant be evaluated in
the context of the entire record”); State v. Delisle, 648 A.2d
632, 642-43 (Vt. 1994) (holding that where the defendant shows a
reasonable possibility that the lost evidence would be
exculpatory, state constitutional due process standards require
balancing of the culpability of the government, the prejudice to
a defendant, and the importance of the lost evidence); State v.
Osakalumi, 461 S.E.2d 504, 512 (W. Va. 1995) (holding as a matter
of state constitutional law that “fundamental fairness requires
[the court] to evaluate the State’s failure to preserve
potentially exculpatory evidence in the context of the entire
record”). 7

17 	No. 20050676
¶43 	In Delisle, for example, the Vermont Supreme Court
rejected the use of the Youngblood test as the standard under its
state constitution. 	Delisle, 648 A.2d at 643. 	In rejecting the
federal standard, the court noted that it believed Youngblood was
“both too broad and too narrow.” 	Id. 	Specifically, the court
stated that Youngblood was too broad because it required “the
imposition of sanctions even though a defendant [did not]
demonstrate[] [any] prejudice from the lost evidence.” 	Id. 	And
it was too narrow because it “limit[ed] due process violations to
only those cases in which a defendant can demonstrate bad faith,
even though the negligent loss of evidence may critically
prejudice a defendant.” 	Id. 	The court therefore adopted its own
test. 	Id. 	Under the test, if a defendant demonstrated “a
reasonable possibility that the lost evidence would be
exculpatory,” then the court would determine the proper sanctions
by balancing “(1) the degree of negligence or bad faith on the
part of the government; (2) the importance of the evidence lost;
and (3) other evidence of guilt adduced at trial.” 	Id. at 642-
43.
¶44 	Like the Vermont Supreme Court, we believe that the
federal rule adopted in Youngblood is “both too broad and too
narrow” to serve as an adequate safeguard of the fundamental
fairness required by article I, section 7 of the Utah
Constitution. 	Thus, we conclude that some balancing of factors
on a case-by-case basis is required. 	That balancing should
embrace the basic principles we have adopted under rule 16 and
the factors mentioned by other states. 	In cases where a
defendant has shown a reasonable probability that lost or
destroyed evidence would be exculpatory, we find it necessary to
require consideration of the following: 	(1) the reason for the
destruction or loss of the evidence, including the degree of
negligence or culpability on the part of the State; and (2) the
degree of prejudice to the defendant in light of the materiality
and importance of the missing evidence in the context of the case
as a whole, including the strength of the remaining evidence.
¶45 	The touchstone for the balancing process is fundamental
fairness. 	If the behavior of the State in a given case is so
reprehensible as to warrant sanction, a sanction might be
available even where prejudice to the defendant is slight or only
speculative. 	If prejudice to the defendant, on the other hand,
is extreme, fairness may require sanction even where there is no
wrongdoing on the part of the State. 	In between those extremes,
we have confidence that trial judges can strike a balance that
preserves defendants’ constitutional rights without undue
hardship to the prosecution.
¶46 	In this case, Tiedemann has not shown any degree of
culpability or bad faith on the part of the State, and the

No. 20050676 	18
reasons for the loss of the evidence are entirely routine and
benign: 	the passage of a very long period of time and the
State’s assumption, based on expert testimony, that Tiedemann
would never become competent to stand trial. 	However, as to the
second category of considerations, the trial court has had no
opportunity to review them under the state due process clause,
and neither party has briefed their application to the facts
here. 	Thus, we remand the case to the trial court for further
proceedings on these matters.
CONCLUSION
¶47 	Because the majority concludes that Tiedemann’s
responses to certain questions during his interrogation are
admissible, we remand this case to the trial court to determine
which responses are in that category. 	Furthermore, we reverse
the pretrial order denying Tiedemann’s motion to dismiss based on
the State’s destruction of potentially exculpatory evidence, and
likewise remand that issue for the trial court’s consideration in
light of this opinion.
---
DURRANT, Justice, writing for the majority:
¶48 	We agree with our colleagues that Tiedemann validly
waived his right to remain silent. 	We further agree that a
defendant who wishes to invoke this right after having waived it
bears the burden of clearly communicating that desire. 	We
disagree as to whether Tiedemann met this burden. 	Chief Justice
Durham is of the view that Tiedemann did, in fact, clearly
reinvoke his right to remain silent and would therefore exclude
all of his answers to questions posed after that reinvocation.
Justice Wilkins is of the view that Tiedemann did not clearly
reinvoke his right and would therefore exclude none of his
answers. 	We believe the better interpretation lies in between
these two views.
¶49 	A defendant controls his right to remain silent. 	He
may invoke it as to all matters or only as to some. 	He may
choose to discuss some topics while eschewing others. 	By stating
“I don’t want to talk about it,” Tiedemann clearly indicated a
desire not to talk about something. 	The ambiguity lies in the
pronoun “it.” 	What did Tiedemann not want to talk about? 	Our
reading of the transcript leads us to conclude that, at a
minimum, Tiedemann did not want to talk about “what happened to
Suzie.” 	To us this much is clear. 	It is far from clear,
however, whether he intended to assert his right to remain silent
beyond this, and we believe the officers were therefore entitled
to seek appropriate clarification. 	But in seeking that

8 	A review of the videotape reveals that this was the
actual question, not the question indicated in the transcript.
19 	No. 20050676
clarification, they were not entitled to direct questions
specifically to “what happened to Suzie.”
¶50 	The transcript reads as follows with respect to
Tiedemann’s first indication that he wished to reassert in some
measure his right to remain silent:
RE (Detective Ron Edwards):
Okay, do you know why we’re going to talk to
you?
ET (Edgar Tiedemann):
Ya.
RE: 	What are we going to talk to you about?
ET: 	The murders out there.
RE: 	What murders?
ET: 	The murders out there at West Valley.
RE: 	Who are they?
ET: 	Suzie, Chuck and Scotty.
RE: 	Whose Suzie?
ET: 	She’s the woman I love.
RE: 	That you love?
ET: 	Ya.
RE: 	What happened to her?
ET: 	I don’t want to talk about it.
¶51 	The obvious candidate for the antecedent of the pronoun
“it” in “I don’t want to talk about it” is the immediately
preceding question: “What happened to her?” 	Thus, Tiedemann
effectively stated: “I don’t want to talk about what happened to
Suzie.” 	We believe this to be the fairest interpretation of
Tiedemann’s statement. 	But theoretically the antecedent of “it”
may have been “The murders out there at West Valley,” making
Tiedemann’s statement the equivalent of “I don’t want to talk
about the murders out there at West Valley.”
¶52 	Given this ambiguity as to the scope of Tiedemann’s
reinvocation of his right to remain silent, we believe the police
officers were entitled to seek clarification. 	And we think the
manner in which they did so was perfectly appropriate. 	Sergeant
Spann first asked, “What don’t you want to talk about?” 8 	In
response, Tiedemann stated, “I love that woman so much.”
Sergeant Spann again asked, “What is it that you don’t want to
talk about? 	You said murders in West Valley, where in West
Valley?” 	A discussion then followed regarding Tiedemann’s
address and the fact that “Suzie and Scotty and they just moved
in last night.” 	Detective Edwards then again asked, “Okay, what
don’t you want to talk about? 	Edgar? 	What don’t you want to

No. 20050676 	20
talk about, Ed?” 	After waiting for a reply for close to ten
seconds, Sergeant Spann stated as follows:
Edgar, we’re not going to force you [to] talk
about anything. 	We’re asking you questions.
As Detective Edwards stated, you can answer[]
this question[], not answer that question,
answer this question, not answer that
question. 	You don’t have to answer any of
our questions at all. 	You can stop at
anytime.
To this Tiedemann replied, “Okay.” 	Sergeant Spann added, “He
made that clear to you, right?” 	Tiedemann responded, “Ya.”
¶53 	As we view the videotape, Tiedemann was not denied the
opportunity to clarify the scope of his reinvocation of the right
to remain silent; rather, the officers gave him multiple
opportunities to clarify the scope of his reinvocation. 	Further,
the officers emphasized to Tiedemann that he controlled his
right, that he could “answer this question, not answer that
question.” 	The officers were not deceptive, abusive, or
intimidating. 	Nor did they cut off Tiedemann’s opportunity to
clarify his reinvocation of his right to remain silent. 	Despite
this opportunity, at this point in the interrogation, Tiedemann
had unambiguously asserted his right to remain silent only as to
Suzie, but not as to the other victims. 	Therefore, while the
officers were precluded from asking about Suzie, they were free
to ask about the other victims.
¶54 	Accordingly, we believe that Detective Edwards was
justified in posing the question “Okay, we were called to your
home on a gunshot. 	We got in there and seen some people. 	Who
shot them?” 	Tiedemann could have answered the question without
reference to Suzie, and the officers were entitled to ask about
the other victims. 	Tiedemann stated, “Me,” to which Detective
Edwards responded, “You did?” 	Tiedemann replied, “Ya.”
Detective Edwards then asked, “Why did you shoot them?” 	Again,
Tiedemann could have answered the question without reference to
Suzie, and the officers were entitled to ask about the other
victims. 	Instead Tiedemann volunteered, “I shot Suzie cause I
love her and I shot the other two.”
¶55 	The interrogation then proceeded, and the officers
asked questions specifically about Chuck and Debra. 	They then
asked another question that did not reference a particular
victim: 	“Okay, why? 	Why did you shoot them?” 	Tiedemann again
volunteered information about Suzie: “I shot Suzie cause I love
her, I love her so much.” 	At this point in the interrogation,
Detective Edwards asked Tiedemann two questions specifically

21 	No. 20050676
about Suzie. 	Further, at various points in the questioning that
followed, the officers asked Tiedemann questions specifically
about Suzie. 	We would exclude all of Tiedemann’s responses to
such questions. 	But we would allow Tiedemann’s responses to all
questions that were not specifically about Suzie and could have
been answered as to the other victims without reference to Suzie.
¶56 	We agree with all other aspects of the majority
opinion.
---
¶57 	Justice Parrish and Justice Nehring concur in Justice
Durrant’s opinion.
---
WILKINS, Associate Chief Justice, dissenting:
¶58 	I respectfully dissent. 	Once Mr. Tiedemann effectively
waived his right to remain silent, he was subject to police
interrogation until he unequivocally reinvoked that right.
Careful review of the record, including the video recording of
the critical portion of the interrogation, makes only one thing
clear: Mr. Tiedemann was not unequivocal in any attempt he may
have made to reinvoke his right to silence. 	As a consequence,
his statements to the police interrogators after voluntarily
waiving his rights against self-incrimination may properly be
admitted in any trial relating to his multiple murder, attempted
murder, aggravated assault, and rape charges.
¶59 	All agree that Mr. Tiedemann voluntarily and
effectively waived his right to remain silent when initially
informed of his right to do so. 	After carefully reconfirming the
waiver and Mr. Tiedemann’s understanding of the waiver at the
beginning of the video recording of the interrogation, the
officers ask him what happened. 	Mr. Tiedemann answers a number
of questions, including some referring to one of the murder
victims, Suzie. 	When the officer asks what happened to Suzie,
Mr. Tiedemann says he does not “want to talk about it.”
¶60 	The confusion, if any, arises from Mr. Tiedemann’s
response. 	It is clear from review of the interrogation video
that the officers were careful to inquire as to what Tiedemann
did, and did not, want to talk about. 	Mr. Tiedemann failed to
clarify his ambiguous statements, and the officers properly
continued questioning. 	Once Mr. Tiedemann was asked to clarify
the meaning of his “I don’t want to talk about it” statement, the
officers were under no obligation to probe further when the
defendant failed to offer any clarification. 	Once he waived his

No. 20050676 	22
right to remain silent, Mr. Tiedemann assumed the duty to clearly
and unequivocally reinvoke that right if that was his intention.
An ambiguous statement followed by non-responsive replies to
questions about what he does not want to talk about does not
shift the burden back to the state to figure it out.
¶61 	In addition, when the video of the interrogation is
viewed, it becomes clear that the officers acted properly and
gave ample time for Mr. Tiedemann to respond to questioning. 	The
transcript records the questioning as follows: 	“Okay, what don’t
you want to talk about? 	Edgar? 	What don’t you want to talk
about, Ed? 	Edgar, we’re not going to force you to talk about
anything . . . .” 	What the transcript fails to illustrate is the
pauses between each question to allow time to answer. 	Because
Mr. Tiedemann did not respond to any of the questions, the
transcript shows one question after another. 	It could appear
that the officers were barraging Mr. Tiedemann with questions,
and that Mr. Tiedemann had no time to process, yet alone answer,
the questions.
¶62 	The unedited video, on the other hand, shows that the
officers allowed ample time for Mr. Tiedemann to respond; he
simply failed to do so. 	The officers paused between each
question, sometimes for up to ten seconds, to allow him to
respond. 	Mr. Tiedemann failed to clarify his equivocal
statement.
¶63 	As we have said before, “if the suspect is not
reasonably clear in his [attempt to stop questioning after
waiving his rights], officers are not required to stop
questioning or focus on clarifying the suspect’s statement.”
State v. Leyva, 951 P.2d 738, 742 (Utah 1997). 	The officers, in
the case of Mr. Tiedemann, went beyond what our law requires.
When faced with the ambiguous statement, the officers gave Mr.
Tiedemann ample opportunity to clearly reinvoke his right to
remain silent. 	Not only did he fail to clarify his intent, he
listened to the officers explain again that he could stop
answering at any time and that they would not force him to answer
any question. 	Given this reemphasis and patient inquiry by the
officers, however, he failed to clear the ambiguity, and, in
fact, continued to answer questions about the murders and other
crimes.
¶64 	The law places a “heavy burden” on the state to
initially establish a suspect’s knowing and voluntary waiver of
the constitutional right to remain silent in the face of police
interrogation, and rightly so. 	Id. at 743. 	However, once a
suspect has voluntarily and knowingly waived that right, any
attempt to reinvoke the right shifts the burden, and the
requirement of clarity, to the suspect. 	Id. 	In other words, the

23 	No. 20050676
law only requires the state to prove the right was lawfully
waived. 	He who claims to reinvoke the right thereafter must
prove that it was done with sufficient clarity as to make it
unambiguous. 	A statement, taken in context, that a suspect
doesn’t want to talk about “it,” without more, is insufficient to
shift the burden back to the state. 	A careful post-hoc parsing
of the phrasing and language by a reviewing court may be helpful,
but it would impose an unattainable burden on law enforcement,
and likely result in the need to treat any suggestion as a
“clear” re-invocation of the right waived. 	Such a result is
neither required, nor useful.
¶65 	In the parallel circumstance of a suspect first waiving
and then making an ambiguous request for counsel, we reached the
same conclusion. 	Relying on reasoning from both our prior
decision in Leyva, and the United States Supreme Court’s decision
in Davis v. United States, 512 U.S. 452 (1994), we observed that
the requirement . . . that an officer limit
his questioning to clarifying a suspect’s
ambiguous or equivocal invocation of the
right to counsel must be limited to prewaiver
scenarios. . . . [A]fter a knowing and
voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning
until and unless the suspect clearly requests
an attorney. 	In other words, police do not
need to limit their questioning to clarifying
questions when a suspect who has previously
waived his Miranda rights makes an ambiguous
request for counsel. 	Furthermore, we see no
reason why this same rule should be different
for ambiguous assertions of the right to
remain silent. 	Therefore, because it is
undisputed that [the defendant] voluntarily
waived his Miranda rights, the detectives
were free to question him until and unless he
unambiguously reinvoked either his right to
counsel or his right to remain silent.
State v. Galli, 967 P.2d 930, 935 n.4 (Utah 1998) (citations and
internal quotations omitted).
¶66 	In the case before us, the officers were unable to
determine from his statement whether Mr. Tiedemann wished to
reinvoke his right to remain silent. 	Due to the equivocal nature
of Mr. Tiedemann’s statement, and despite being under no
obligation to do so, the officers made reasonable attempts to
understand what he meant. 	They asked, “What don’t you want to
talk about?” 	After allowing ample time for Mr. Tiedemann to

No. 20050676 	24
respond and clarify his statement, which he did not do, the
officers continued with questioning, and Tiedemann confessed to
the murders. 	The officers were well within the bounds of
constitutional behavior in doing so.
¶67 	The trial court agreed that Mr. Tiedemann’s
reinvocation of the right to remain silent, if that was what it
was intended to be, was ambiguous. 	My colleagues concede that
the “scope of Tiedemann’s invocation” was ambiguous. 	I do not
read the record or view the video recording of the event to
reveal anything other than that Mr. Tiedemann’s statement was
ambiguous, at most. 	One could very easily conclude that the
statement was more of an expression of remorse and pain than one
of reinvoked rights.
¶68 	Ultimately, Mr. Tiedemann knowingly and voluntarily
waived his right to remain silent. 	The heavy burden that rests
upon the state to establish a valid waiver in the first place
shifts thereafter to the defendant to prove a reinvocation of the
waived right. 	Once he waived his right to silence, this burden
shifted to Mr. Tiedemann. 	He failed to unequivocally reinvoke
his right, and his confession is properly subject to admission.
¶69 	I would affirm the decision of the trial court that the
defendant failed to adequately reinvoke his right to remain
silent.
¶70 	Moreover, given my analysis of the admissibility of Mr.
Tiedemann’s confessions to the various crimes with which he is
charged, I see no possibility, as a matter of law, of any
prejudice arising from the State’s destruction of any of the
evidence over the years. 	Consequently, I would affirm the
decision of the trial court on that matter as well.
¶71 	I would affirm.