Aug. 27, 2014 – The Wisconsin Supreme Court has upheld the convictions of two defendants who argued that their incriminating statements to police should have been suppressed because they properly invoked a right to remain silent.
In State v. Cummings and State v. Smith, 2014 WI 88 (July 24, 2014), a majority ruled that both defendants did not unequivocally invoke a right to cut off police questioning.
In one case, defendant Carlos Cummings was charged with attempted first-degree intentional homicide with a dangerous weapon as a party to a crime, in addition to other felony charges. Cummings was accused of plotting to murder the husband of the woman he was having an affair with by hiring a hit woman to kill the husband.
During an interrogation by detectives, Cummings asked the detectives to tell him what the Carla Glodowski, the wife of the victim, was saying about him, because the detective said he had information about what Cummings did. The detective refused.
Then Cummings said: “Well, then, take me to my cell. Why waste your time? Ya know?” Cummings argued that this statement was an invocation of a right to remain silent.
The interrogation continued and Cummings eventually admitted that he drove a woman named Linda Dietze to a park. In the park, Dietze shot the husband of Cummings’ lover, Glodowski, with .22 caliber pistol. The husband survived and identified Dietze. The husband said that Dietze told him, as he lay there, that she did it for his wife.
After the circuit court denied his motion to suppress the statements, Cummings pled1 no contest to first-degree reckless injury as a party to a crime. As a habitual criminal, the court imposed a prison sentence of 14 years with 10 years extended supervision.
In the other case, defendant Adrean Smith was charged with seven counts of armed robbery as a party to the crime, in addition to other felony charges.
In the interrogation, police began questioning Smith about the armed robberies. Smith said: “I don’t want to talk about this. I don’t know nothing about this.” Smith said he didn’t want to talk about the robberies three times during the conversation.
He made other statements denying his involvement. Police continued questioning and ultimately, Smith admitted that he was involved in the armed robberies.
After the court denied his motion to suppress his statements, Smith pled guilty to three counts of armed robbery and one count of first-degree reckless injury. The court imposed a sentence of 25 years in prison, with 10 years of extended supervision.
In both cases, the appeals court affirmed, concluding that neither defendant properly invoked the right to remain silent and their statements could be used against them.
Right to Remain Silent Not Clearly Invoked
The Wisconsin Supreme Court noted that the U.S. and Wisconsin constitutions protect persons from compelled self-incrimination but ruled that Smith and Cummings, after they received Miranda warnings, did not clearly invoke the right to remain silent.
“A suspect must ‘unequivocally’ invoke the right to remain silent in order to ‘cut off questioning,’” wrote Justice Annette Ziegler in the majority opinion.
The majority explained that the U.S. Supreme Court, in Berghuis v. Thompkins, 560 U.S. 370 (2010), confirmed that that the right to stop police questioning requires an unequivocal invocation that is subject to an objective test.
That is, if a suspect’s statements are subject to “reasonable competing inferences,” police may continue questioning because the right was not invoked unequivocally.
A majority said the statements made by Cummings and Smith were subject to “reasonable competing inferences” by the detectives who were questioning them.
“Cummings is correct that his statement could be read literally: as a request that he be removed from the room because he was no longer interested in talking to the officers,” wrote Justice Ziegler for a 6-1 majority in the Cummings case.
“Another possibility, however, is that his statement was a rhetorical device intended to elicit additional information from the officers about the statements of his co-conspirators.”
The majority also rejected Cummings’ claim that his 24-year sentence (14 years in prison, 10 years supervision) was unduly harsh. The sentence was near the maximum.
As for Smith, the majority noted that it was a closer call. Unlike the Cummings case, the court voted to uphold Smith’s conviction by a 4-3 majority.
“We agree that, standing alone, Smith’s statements might constitute the sort of unequivocal invocation required to cut off questioning, and we further acknowledge that that Smith’s statement presents a relatively close call,” Justice Ziegler wrote.
“In the full context of his interrogation, however, Smith’s statements were not an unequivocal invocation of the right to remain silent.”
The majority recognized that Smith said he “didn’t want to talk about this” repeatedly, but it wasn’t clear whether he didn’t want to talk about the armed robberies, because police had also been asking him about other crimes he and continued to answer them.
“In listening to the recording of the interrogation, it seems that he meant to refer to the robberies but this is not the only interpretation,” Justice Ziegler wrote.
Concurrence and Dissent
Justices David Prosser and Ann Walsh Bradley ruled that Cummings did not invoke the right, but Smith did.
“When Smith said, ‘I don’t want to talk about this,’ he unambiguously indicated that he did not want to talk anymore,” wrote Justice Prosser, dissenting in the Smith case.
He noted that the statements that Smith made were similar to the statements made by the defendant in State v. Goetsch, 186 Wis. 2d 1, 519 N.W.2d 634 (Ct. App. 1994), where court ruled that a defendant properly invoked his right to remain silent.
“Like Goetsch, Smith told his interrogator that he had given all the information he had,” Justice Prosser wrote. “Smith’s statement – ‘I don’t want to talk about this’ – is identical to one of Goetsch’s statements. Thus, there is no basis for the different result in the present case.”
Chief Justice Shirley Abrahamson dissented in both cases, arguing that the defendant’s in both cases clearly invoked a right to remain silent.
The chief justice argued that a reasonable police officer would understand that the statements made by Cummings and Smith indicated a desire to cut off the questioning.
“The majority opinion, dwelling on the subject’s subjective motives, seems to apply a subjective ‘unequivocal invocation test,’ contrary to the holdings of the United States Supreme Court in Davis and Thompkins,” the chief justice wrote. “The majority opinion seems to assert that defendants did not mean what they said.”
1 There is some debate about whether use of the term “pled” or “pleaded” is correct. In this case, the Wisconsin Supreme Court uses the term “pled.” Therefore, this article uses the term “pled.”