State v. D. Crawford

09/22/2026 DA 24-0718 Case Number: DA 24-0718 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 225 STATE OF MONTANA, Plaintiff and Appellee, v. DEL ORRIN CRAWFORD, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-2022-324 Honorable Dan Wilson, Presiding Judge COUNSEL OF RECORD: For Appellant: Colin M. Stephens, Stephens Brooke, P.C., Missoula, Montana For Appellee: Austin Knudsen, Montana Attorney General, Selene Koepke, Assistant Attorney General, Helena, Montana Travis Ahner, Flathead County Attorney, Thorin A. Geist, Special Deputy County Attorney, Kalispell, Montana Submitted on Briefs: June 10, 2026 Decided: September 22, 2026 Filed: __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court. ¶1 Del Orrin Crawford appeals his Flathead County jury conviction of Deliberate Homicide, Attempted Deliberate Homicide, Assault with a Weapon, and Tampering with Physical Evidence. He challenges the Eleventh Judicial District Court’s refusal to suppress two sets of statements he made to law enforcement after he had asserted his right to counsel. We restate the issues on appeal: 1. Did the District Court commit reversible error when it admitted Crawford’s statements about the location of the firearm after he had invoked his Miranda rights? 2. Did the District Court err when it found that Crawford reinitiated conversation about the investigation and waived his right to counsel before providing a voluntary statement to law enforcement? We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Whisper Sellers arrived at the South Fork Saloon in Martin City, Montana, on the night of August 26, 2022. Whisper was at the saloon with her husband, Douglass “Doug” Crosswhite, and her sister-in-law, Alicia Crosswhite, to celebrate Doug and Whisper’s birthdays. Crawford came to the saloon the same night after a wedding rehearsal dinner. He was driving a golf cart and shuttling members of a wedding party between the wedding venue and the saloon. ¶3 While standing outside, Whisper, Doug, and Alicia climbed inside, sat on, and “goofed around” on the golf cart, ultimately causing it to roll forward. Crawford, who had been inside the saloon for about an hour, returned to the golf cart to transport a member of the wedding party, Chelsea Bauska, back to the wedding venue. When Crawford emerged 2 from the saloon he saw that Whisper, Doug, and Alicia were inside the golf cart and that it had rolled forward. ¶4 Crawford confronted the group and accused them of attempting to steal the golf cart. In response, Whisper, Doug, and Alicia gave Crawford several explanations for why they were sitting in it and why it had moved. The dispute escalated into a shouting match between Crawford and Whisper, and Crawford shoved Whisper backwards by her shoulders. Doug then confronted Crawford and pushed him, causing him to fall backwards over a boulder and onto the ground. ¶5 Crawford stood up and pulled a handgun out of his waistband. He fired toward the group, striking both Whisper and Doug. One bullet struck Whisper in the chest, piercing both sides of her heart and exiting through her back. Chelsea attempted CPR, but paramedics ultimately pronounced Whisper dead at the scene. Another bullet struck Doug in the right arm and abdomen. Doug’s brother, Brad Crosswhite, helped Doug flee the area and applied a tourniquet to Doug’s arm. Doug was transported to the hospital by helicopter, where he learned Whisper was dead. The bullet that struck Doug entered through his right arm, causing severe, permanent damage to his bone, artery, and nerves, and then traveled into his abdomen, collapsing his lung and breaking a rib before coming to rest in his liver, where it remains. ¶6 Crawford left the saloon after the shooting and before law enforcement or medical personnel arrived. He called 911 at least three times after leaving the saloon; his call eventually was transferred to Sergeant Caleb Tappan of the Flathead County Sheriff’s Office. Crawford was distraught during the call and informed Sergeant Tappan that he was 3 acting in self-defense. Sergeant Tappan directed another deputy, Corporal Aaron Westphal, and an arrest team to Crawford’s location. Sergeant Tappan also advised Crawford to place his firearm on the side of the road and surrender unarmed, and Crawford confirmed that he would. Corporal Westphal and the arrest team arrived soon thereafter at Crawford’s location, a wooded residential area approximately one quarter of a mile from the saloon. Crawford surrendered to law enforcement unarmed and without incident. Deputies searched for Crawford’s firearm on the road in the area around where he was arrested, but they were unable to locate the weapon. Corporal Westphal then transported Crawford to the Martin City Fire Hall (Fire Hall), as he believed it was a safer, more secure location. ¶7 Corporal Westphal read Crawford his Miranda rights when they arrived at the fire hall.1 Crawford interrupted Corporal Westphal and immediately asserted his right to counsel. Corporal Westphal then said to Crawford, “alright but without talking to an attorney first, I won’t be able to know what happened, just to let you know that.” Corporal Westphal later stated that this was an attempt to make sure Crawford understood his rights that inadvertently came out as “word salad,” rather than an attempt to dissuade Crawford from exercising his right to counsel. After Crawford requested an attorney, Corporal Westphal immediately asked Crawford several questions about the location of the firearm. Corporal Westphal expressed to Crawford his concern that the firearm might be found by someone else, including a child. Crawford answered the questions and informed Corporal 1 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). 4 Westphal that the firearm was hidden, safe, unloaded, and incapable of being found by either law enforcement or a member of the public. Corporal Westphal asked no additional questions and transported Crawford to the Sheriff’s Office. Crawford made several unprompted inquiries and statements to Corporal Westphal during the drive to the Sheriff’s Office. ¶8 Corporal Westphal placed Crawford in an interrogation room and informed him that someone would arrive shortly to speak to him. Crawford was not provided with an attorney or given the opportunity to obtain or consult with an attorney before being placed in the interrogation room. Corporal Westphal then spoke with Detectives Scott McConnell and Robert Brauer and indicated that he believed Crawford wanted to talk to them. Corporal Westphal did not inform the detectives that Crawford asserted his right to counsel while at the Fire Hall. ¶9 Detective McConnell and Detective Brauer entered the interrogation room approximately 40 minutes later, swabbed Crawford’s hands for gunshot residue, and allowed him to use the restroom. While the detectives performed the swab, Crawford volunteered information and asked several questions about the status of the investigation. Detectives McConnell and Brauer told Crawford that they did not know what happened that night, and Crawford indicated that he was willing to speak with the detectives and did not think he needed an attorney. The detectives then read Crawford his Miranda rights for a second time. Crawford acknowledged that he understood his rights and signed a form to that effect. The detectives questioned Crawford without an attorney present, and he did not say more about contacting an attorney. 5 ¶10 The next day, Detective Luke Foster arrived at the wedding venue where Crawford had been prior to his arrival at the saloon. Detective Foster began searching for the missing firearm and for Crawford’s vehicle based on a set of Jeep keys found in Crawford’s belongings at the Sheriff’s station. Detective Foster located a Jeep parked on a small road behind the venue. He verified that the Jeep belonged to Crawford and looked through the windows, observing the handle of a firearm protruding from a bag and an air rifle. Detective Foster called for a tow truck to impound the vehicle pending a search warrant. While the tow chains were being attached to the Jeep, Detective Foster observed another firearm tucked inside the wheel well among the suspension of the vehicle that was consistent with the kind of firearm used in the shooting. Detective Foster collected the firearm and confirmed it was loaded. ¶11 After the District Court denied Crawford’s motion to suppress his statements made to law enforcement, the case went to trial.2 Following three days of testimony, a jury acquitted Crawford of one count of Assault with a Weapon and convicted him of the other four charges. Crawford was sentenced to 100 years at the Montana State Prison with no time suspended. STANDARDS OF REVIEW ¶12 This Court “review[s] a district court’s grant or denial of a motion to suppress to determine whether the court’s findings are clearly erroneous and whether those findings were applied correctly as a matter of law.” State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 2 The court granted suppression of statements Crawford made to Detectives McConnell and Brauer about his alcohol consumption before his second Miranda advisement. 6 272 P.3d 60 (citations omitted). “A factual finding is clearly erroneous if it is ‘not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if this Court’s review of the record leaves us with a definite or firm conviction that a mistake has been made.’” State v. Nixon, 2013 MT 81, ¶ 15, 369 Mont. 539, 298 P.3d 408 (quoting State v. Morrisey, 2009 MT 201, ¶ 14, 351 Mont. 144, 214 P.3d 708). DISCUSSION ¶13 Issue 1: Did the District Court commit reversible error when it admitted Crawford’s statements about the location of the firearm after he had invoked his Miranda rights? ¶14 Crawford first argues that the District Court erred by admitting into evidence the statements he made to Corporal Westphal after he asserted his right to counsel. In response, the State acknowledges that Crawford invoked his right to counsel but argues that Corporal Westphal’s questions and Crawford’s responses properly were admitted under the public safety exception to Miranda. Alternatively, the State argues that any error was harmless. ¶15 Before a person taken into law enforcement custody may be subjected to questioning, they must be advised of “‘the right to the presence of an attorney, and that if [a person] cannot afford an attorney one will be appointed [] prior to any questioning if he so desires.’” Nixon, ¶ 19 (quoting Miranda, 384 U.S. at 479, 86 S. Ct. at 1630). Statements obtained in violation of Miranda generally must be excluded from evidence. Nixon, ¶ 19. ¶16 The U.S. Supreme Court has recognized exceptions to the application of the exclusionary rule when statements are obtained without compliance with Miranda’s prescribed prophylactic warnings. See, e.g., Harris v. New York, 401 U.S. 222, 91 S. Ct. 643 (1971) (impeachment). The District Court relied on one such exception—the so-called 7 “public safety exception.” New York v. Quarles, 467 U.S. 649, 651, 104 S. Ct. 2626, 2629 (1984). This Court has recognized the public safety exception but has not had occasion until now to consider its application. City of Missoula v. Kroschel, 2018 MT 142, ¶ 22 n.10, 391 Mont. 457, 419 P.3d 1208.3 ¶17 The Court in Quarles recognized that, under some circumstances, considerations of public safety justify deviation from strict compliance with Miranda’s prophylactic warnings. Quarles, 467 U.S. at 651, 104 S. Ct. at 2629. One such situation is when police, “in the very act of apprehending a suspect, [are] confronted with the immediate necessity of ascertaining the whereabouts of a gun which they [have] every reason to believe the suspect had just [concealed].” Quarles, 467 U.S. at 657, 104 S. Ct. at 2632. In such situations, “so long as the gun [is] concealed . . . with its actual whereabouts unknown, it obviously pose[s] more than one danger to the public safety: an accomplice might make use of it, or a [member of the public] might later come upon it.” Quarles, 467 U.S. at 657, 104 S. Ct. at 2632. The Court held that, in situations where police obtain a statement while “follow[ing] their legitimate instincts when confronting situations presenting a danger to the public safety,” that statement is admissible even where a proper Miranda advisory was not given. Quarles, 467 U.S. at 657-58, 104 S. Ct. at 2633. ¶18 Crawford argues that the District Court’s application of the public safety exception was error, and his statements to Corporal Westphal should have been suppressed. He 3 As we noted in Kroschel, regardless of Miranda exceptions, an “‘actually coerced’ statement, i.e., an involuntary statement, is inadmissible for any purpose.” Kroschel, ¶ 22 n.10 (citations omitted). Crawford does not contend that law enforcement coerced his statements or that they otherwise were not voluntary. 8 contends that the mere suspicion that a firearm is present is not inherently an objectively reasonable public safety concern. See United States v. Mobley, 40 F.3d at 693 n.2. (4th Cir. 1994). ¶19 Crawford characterizes the location of his arrest as a remote, wooded area and argues that it was not objectively reasonable for Corporal Westphal to believe that another person could happen upon the firearm. The State disputes Crawford’s characterization and contends that the District Court properly relied on the public safety exception. The State alternatively urges the Court to find the error harmless. In light of the trial record, we find it unnecessary to determine in this case whether the District Court properly admitted Crawford’s statements to Corporal Westphal under the public safety exception articulated in Quarles because error, if any, was harmless. ¶20 If evidence is admitted at trial in violation of a defendant’s constitutional protections, “the State, as the ‘beneficiary of a constitutional error[,]’ bears the burden of proving that the error was harmless beyond a reasonable doubt.” State v. Mercier, 2021 MT 12, ¶ 31, 403 Mont. 34, 479 P.3d 967 (alteration in original) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)). When the inadmissible evidence was admitted to prove an element of the charged offense, we employ a restrictive “cumulative evidence” test, which “looks not to the quantitative effect of other admissible evidence, but rather to whether the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence proved.” State v. Van Kirk, 2001 MT 184, ¶ 43, 306 Mont. 215, 32 P.3d 735 (original emphasis). If the record shows such evidence, the State must “demonstrate that the quality of the tainted evidence was such that there was 9 no reasonable possibility it might have contributed to the conviction.” State v. Santillan, 2017 MT 314, ¶ 35, 390 Mont. 25, 408 P.3d 130. See also State v. Maas, 2026 MT 217, ¶ 36, ___ Mont. ___, ___ P.3d ___. ¶21 Crawford told Corporal Westphal that he hid the gun, that it was not findable, that it was “unloaded and empty, and it’s just a piece of steel.” Corporal Westphal responded, “Okay. Safe?” Crawford replied, “Oh yeah,” and the officer asked no further questions. The State offered this evidence to show that Crawford lied about the whereabouts of the gun. The evidence was relevant both to Crawford’s claim of justifiable use of force4 and to the State’s proof that Crawford tampered with evidence.5 We examine the record to determine whether there was cumulative admissible evidence that proved the same facts as Crawford’s statements to Corporal Westphal. Maas, ¶ 36; Santillan, ¶ 35. As discussed in our analysis of Issue Two, we conclude that the District Court properly admitted Crawford’s statements to Detectives McConnell and Brauer. During that interview, Detective McConnell and Crawford had the following exchange: DETECTIVE MCCONNELL: Okay. Did you have it in the holster, like on your belt? CRAWFORD: Um hmm. DETECTIVE MCCONNELL: Okay. And where is that now? The gun and the holster. 4 Once a Defendant has offered evidence of justifiable use of force, the State must prove beyond a reasonable doubt that the defendant’s actions were not justified. State v. Dulaney, 2025 MT 67, ¶ 23, 421 Mont. 251, 566 P.3d 534; Maas, ¶ 41. 5 “A person commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, the person . . . alters, destroys, conceals, or removes any record, document, or thing with purpose to impair its verity or availability in the proceeding or investigation.” Section 45-7-207(1)(a), MCA. 10 CRAWFORD: I got rid of it. DETECTIVE MCCONNELL: Okay. What do you mean you got rid of it? CRAWFORD: It’s hidden, it’s unloaded, and ditched. DETECTIVE MCCONNELL: Okay, well, obviously we’d like to recover that. CRAWFORD: (Nods yes) DETECTIVE MCCONNELL: Where’s it at? CRAWFORD: (Inaudible) DETECTIVE MCCONNELL: Yeah. CRAWFORD: Under a tree, you know, in a tree well. DETECTIVE MCCONNELL: Okay. Why’d you hide it? CRAWFORD: Because I didn’t know what the hell to expect here. DETECTIVE MCCONNELL: Okay. Do you think we can find it or can you? CRAWFORD: No. DETECTIVE MCCONNELL: Point us in the right direction type thing? CRAWFORD: No. DETECTIVE MCCONNELL: You don’t want to, or? CRAWFORD: I can go find it. For me to try and give you directions to it would be catastrophic. I mean. DETECTIVE MCCONNELL: Eh, no, I don’t think so. CRAWFORD: No. 11 DETECTIVE MCCONNELL: I mean, if you can kind of explain the road it’s on and off, you know, off the road, how far about. CRAWFORD: No. You’ll never find it. DETECTIVE MCCONNELL: Well, we’d like to try. CRAWFORD: Um hmm. I understand that. DETECTIVE MCCONNELL: Okay. Can you try and explain to us where. CRAWFORD: No. DETECTIVE MCCONNELL: from when you left the bar to where it’s at? Why don’t you want to tell us? CRAWFORD: Well, what, what bearing does my weapon have to do with anything? DETECTIVE MCCONNELL: A lot. CRAWFORD: I can’t get you to the gun. DETECTIVE MCCONNELL: You can’t or you don’t, you just don’t want us, you don’t want to tell us, or? CRAWFORD: I, I couldn’t get you to it. DETECTIVE MCCONNELL: I mean, if you can briefly explain where you went from the bar, I think there’s a good chance we can find it. CRAWFORD: Um hmm. Maybe. DETECTIVE MCCONNELL: Can you do that? CRAWFORD: No. DETECTIVE MCCONNELL: Okay. Is the holster with it? CRAWFORD: Um hmm. DETECTIVE CRAWFORD: Okay. 12  CRAWFORD: It’s empty. ¶22 Crawford continued to push back against Detective McConnell’s questions about the gun, said that he “didn’t have to” explain where it was, remained adamant that he had gotten rid of it, and finally told the detective—when asked why he would do so when he had acted in self-defense: I guess I really didn’t think about it that far. I knew goddamn well I didn’t want three sheriffs with guns on me when I pulled my shirt up and had a gun in my waistband. . . . Okay. So, I ran, I was freaked the fuck out, and I got rid of my gun. I can’t tell you where it is sir. I can tell you it’s empty, I can tell you no one can find it and hurt anyone with it unless they hit them with it. But I cannot tell you where that gun is. ¶23 The State also offered the 911 call, during which Crawford stated that he had the gun in his hand, that Sergeant Tappan directed him to put it on the side of the road, and that Crawford agreed. The jury heard additional evidence that officers found the gun inside the suspension of Crawford’s Jeep. All of this properly admitted evidence proved the same fact: that Crawford hid the gun and then lied to the law enforcement officers about where it was. The quality of the tainted evidence—Crawford’s statements to Corporal Westphal—was minimal when compared to that of the cumulative admissible evidence. The State mentioned in closing argument Crawford’s “many different variations of where [the gun] was,” including his statement to Corporal Westphal. But it pointed to his statement to Sergeant Tappan and emphasized that “Detective McConnell asked him where the gun was over and over and over again.” Given the qualitative strength of the evidence properly admitted, we conclude that there was no reasonable possibility Crawford’s statements to Corporal Westphal might have contributed to his conviction. 13 ¶24 Based upon the foregoing, we conclude that, even if the District Court should not have admitted Crawford’s statements to Corporal Westphal about the location of the firearm—a question we do not decide—any error was harmless beyond a reasonable doubt. ¶25 Issue 2: Did the District Court err when it found that Crawford reinitiated conversation about the investigation and waived his right to counsel before providing a voluntary statement to law enforcement? ¶26 Crawford argues that the second set of statements he made to law enforcement should have been suppressed because they were obtained after he already invoked his right to counsel. The State responds that these statements properly were admitted because Crawford reinitiated conversation with law enforcement, thereby waiving his prior assertion. ¶27 When a suspect “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1612. Waiver of the right to counsel when a defendant has previously invoked that right must be voluntary, knowing, and intelligent. Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1884 (1981). Whether a waiver of the right to counsel is valid depends on the “particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938). “A valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards, 451 U.S. at 484, 101 S. Ct. at 1884-85 (emphasis added). 14 ¶28 In Edwards, a suspect made several statements to police before invoking his right to counsel. 451 U.S. at 479, 101 S. Ct. at 1882. The next morning, a detention officer transported Edwards to an interrogation room and told him that “‘he had’ to” speak with detectives. Edwards, 451 U.S. at 479, 101 S. Ct. at 1882. Officers provided Edwards with another Miranda advisory, and Edwards then confessed to self-incriminating information. Edwards, 451 U.S. at 479, 101 S. Ct. at 1882. This second set of questioning was “not at [the defendant’s] suggestion or request . . .” and was instead initiated by law enforcement officers, even though Edwards had informed them that he did not want to talk. Edwards, 451 U.S. at 487, 101 S. Ct. at 1886. The Court held that, because Edwards asserted his right to counsel and then was subject to further custodial interrogation at the instance of law enforcement rather than his own, his otherwise voluntary statements did not constitute a valid waiver of his previously asserted right to counsel. Edwards, 451 U.S. at 487, 101 S. Ct. at 1886. The Court observed, however, that “nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to [a suspect’s] voluntary, volunteered statements and using them against [the suspect] at trial.” Edwards, 451 U.S. at 485, 101 S. Ct at 1885. ¶29 The Court clarified Edwards in Arizona v. Roberson, explaining that once an accused has asserted their right to counsel, interrogation may occur without counsel if “the accused himself initiates further communication, exchanges, or conversations with the police.” Arizona v. Roberson, 486 U.S. 675, 680-81, 687, 2093 S. Ct. 2093, 2097, 2101 (1988) (quoting Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885). But every officer has a responsibility, at the outset of an interrogation, to determine whether the individual 15 previously requested counsel. Roberson, 486 U.S. at 687-88, 108 S. Ct. at 2101. The failure of an officer to make this determination prior to an interrogation, the Court reasoned, does not excuse a failure to provide an attorney to someone who previously asserted their right to one. Roberson, 486 U.S. at 688, 108 S. Ct. at 2101. ¶30 In State v. Lawrence, after giving the suspect a Miranda advisory, officers began questioning Lawrence until he indicated that he wished to speak with an attorney. State v. Lawrence, 285 Mont. 140, 148-50, 948 P.2d 186, 191-92 (1997). The officers immediately terminated the questioning and began to leave the room, but Lawrence then asked them questions about the investigation and volunteered information about accomplices. Lawrence, 285 Mont. at 149-50, 948 P.2d at 192. The officers gave Lawrence another Miranda advisory, and he told them that he did not want an attorney. Lawrence, 285 Mont. at 150, 948 P.2d at 192. The district court denied Lawrence’s motion to suppress, reasoning that his questions to law enforcement about the status of the investigation and his statements about accomplices constituted a reinitiation of the conversation with law enforcement. Lawrence, 285 Mont. at 154, 948 P.2d at 194. This Court affirmed. Lawrence, 285 Mont. at 154, 948 P.2d at 194; see also State v. Scheffer, 2010 MT 73, ¶ 26, 355 Mont. 523, 230 P.3d 462 (endorsing the rule from Roberson that, when a suspect requests counsel during a custodial interrogation, “he is not subject to further questioning regarding any offense unless an attorney is actually present or the suspect himself reinitiates conversation.” (emphasis added)). ¶31 Crawford points to this Court’s discussion in Scheffer of Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079 (2009), to support his argument. Montejo examined the right to 16 counsel in the context of the Sixth Amendment when “adversary judicial criminal proceedings have been initiated.” Scheffer, ¶ 16. In contrast, when Detectives McConnell and Brauer questioned him, Crawford had not yet been charged with a crime—adversary judicial proceedings had yet to be initiated. The dispute in this case therefore falls squarely within the Fifth Amendment and the associated Miranda doctrine, and Montejo is inapposite. ¶32 The District Court found that Crawford’s unprompted comments and inquiries while being transported to the Sheriff’s Office and the statements he made to detectives prior to his second Miranda advisory amounted to a voluntary reinitiation of the conversation and thus Crawford’s knowing, voluntary, and intelligent waiver of his rights under Miranda. ¶33 Corporal Westphal asked Crawford a single question during the nearly thirty-minute drive from the Fire Hall to the Sheriff’s Office: whether he preferred to listen to rock or country music on the radio. Crawford, however, initiated multiple exchanges regarding the events of that night and the status of the investigation. His first inquiry came about eight minutes into the car ride: CRAWFORD: So what are we doing tonight, boss? CORPORAL WESTPHAL: Heading back to the sheriff’s office. CRAWFORD: For the purposes of booking me for what? CORPORAL WESTPHAL: I’m not booking you for anything. I’m not booking you for anything. 17 After about thirty seconds of silence, Crawford asked whether he would be able to get a ride back to the wedding venue, and Corporal Westphal responded that it could be a possibility. After about two more minutes of silence, Crawford asked: CRAWFORD: So, what’s the speculation? CORPORAL WESTPHAL: Speculation? CRAWFORD: Yeah. CORPORAL WESTPHAL: I don’t know anything that’s really going on, so. CRAWFORD: (Inaudible) . . . stories, right? CORPORAL WESTPHAL: I haven’t talked to anybody. CRAWFORD: (Inaudible) CORPORAL WESTPHAL: No. It’s a matter of like there’s just too many people, and I don’t know what is going on. So everybody needs to be talked to individually, so you don’t have a biased interpretation of anything . . . . CRAWFORD: Well, it’s a fucked-up world anymore when people mistreat people like that, just wrong place at the wrong time. Canyon wants to turn into a nice place but still can’t get rid of the bullshit. After about ten more minutes of silence, Crawford initiated a third conversation: CRAWFORD: Sir, would it be possible for me to call my ex-wife and let her know that, well, I guess it will be determined how long I will be detained. CORPORAL WESTPHAL: Yeah, I’m sure we can. CRAWFORD: Let’s figure out how long that will be, and then I will let her know what is going on. And I have a child I need to take care of. CORPORAL WESTPHAL: Okay. CRAWFORD: And she’s supposed to leave town for a funeral in the next day or two. 18  CORPORAL WESTPHAL: Okay. CRAWFORD: Before I (Inaudible) if it comes to that, which I imagine it will. CORPORAL WESTPHAL: Lets— CRAWFORD: It was self-defense, as it was, I doubt you all are going to let me go anytime soon. CORPORAL WESTPHAL: Well, Del, like I said, there’s a process. Got to get— CRAWFORD: Boss, you don’t got to answer my rhetorical questions. CORPORAL WESTPHAL: Okay. Okay. CRAWFORD: Thanks for being so decent. CORPORAL WESTPHAL: Yeah, man. No worries. ¶34 While Corporal Westphal led Crawford into the Sheriff’s Office, Crawford made an unprompted comment about his use of the firearm that night. Crawford asked to use the restroom when he arrived at the Sheriff’s Office. Before allowing him to do so, Detectives McConnell and Brauer, without first asking him any questions, performed a gunshot residue test on his hands. Before they performed the test, Crawford asked the detectives what they needed from him, and again inquired about the status of the investigation: CRAWFORD: What do you need from me man. I’m, I’m sorry. I’m sorry I put you guys through this tonight, it’s not what I wanted to go through tonight either, and uh, goddamn, I really hope I don’t spend more than a couple days here, but. What do you need from me sir? ¶35 During the gunshot residue test, Crawford volunteered information about which hand he used to shoot the firearm, and which hand he used to support it: 19  DETECTIVE MCCONNELL: (Gesturing for Crawford’s right hand to swab for gunshot residue.) Right hand. CRAWFORD: Yup. That’s the hand I use. DETECTIVE MCCONNELL: So you’re right-handed shooting too? CRAWFORD: I am. DETECTIVE MCCONNELL: Okay. CRAWFORD: I probably use the other one to support it as well. DETECTIVE MCCONNELL: Okay. DETECTIVE [BRAUER]:6 (Speaking to Detective McConnell about a gunshot residue collection tube.) And do you have the left one? I can start on that. CRAWFORD: Sorry to drag you guys out here to do this tonight. How fucked am I? You’re not going to tell me anything, are you? DETECTIVE [BRAUER]: We don’t know exactly what happened. CRAWFORD: That’s alright. I’m fucked anyways. What do you need me to do, boss? I’m sorry. When Crawford returned from the restroom, he again inquired into the status of the investigation and asked how long he would be at the Sheriff’s Office. The detectives then left the room, and when they returned Detective McConnell stated that they did not know what happened that night. Crawford responded by saying “I’ll tell you, I’ll tell you what I can. I don’t think I need an attorney.” The detectives read Crawford his Miranda rights again, and Crawford signed a form acknowledging that he understood those rights. 6 The transcript of the interrogation attributes these comments to “Detective Brown.” Detective McConnell’s testimony indicates that he was working alongside Detective Brauer. This Court believes that “Detective Brown” may be a typographical error. 20 ¶36 Crawford argues that Corporal Westphal improperly failed to inform detectives McConnell and Brauer that he asserted his right to counsel earlier in the night and instead told them that it seemed Crawford wanted to talk. Crawford argues that the detectives’ ignorance of his previous assertion of his right to counsel does not excuse their subsequent questioning.7 The detectives, however, asked Crawford no questions when they entered the room to examine his hands for gunshot residue. Crawford instead volunteered several pieces of information and indicated a desire to speak with them and to assist in the investigation. The detectives informed Crawford that they were reading him his Miranda rights even though they already had been read once. Crawford immediately denied ever being read his rights and made no mention of asserting his right to counsel. He told the detectives at the outset that he did not think he needed an attorney. Further, at one point during the questioning, when Detective McConnell believed Crawford could have been asking for an attorney, he paused the questioning, asked Crawford whether he was asking for an attorney, and continued the questioning only when Crawford confirmed that he was not. ¶37 The District Court found that Crawford’s repeated, unprompted instances of volunteering information and inquiring about the status of the investigation constituted a waiver of his previously asserted right to counsel. It found further that the detectives’ ignorance of Crawford’s previously asserted right to counsel did not render the statements inadmissible as being obtained in violation of Crawford’s Miranda rights. We agree. 7 At the suppression hearing, Detective McConnell acknowledged that he would not have questioned Crawford had he known that he already asserted his right to counsel. 21 When subsequent questioning is reopened at the instance of the accused themselves, rather than by law enforcement, such questioning is permitted. Substantial evidence supports the District Court’s finding that Crawford offered repeated, unprompted statements and inquiries before deputies gave him a second Miranda advisory and asked further questions (with the exception of the question about whether he had been drinking). Crawford has not shown clear error in this finding. Crawford’s voluntary reinitiation of the conversation constituted a waiver of his right to counsel. CONCLUSION ¶38 For the foregoing reasons, we affirm Crawford’s judgment of conviction. /S/ BETH BAKER We Concur: /S/ CORY J. SWANSON /S/ KATHERINE M. BIDEGARAY /S/ INGRID GUSTAFSON /S/ JIM RICE 22