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    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 3, March 2008

    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    Criminal Procedure

    Interrogation - Invoking Miranda Right to Counsel - Functional Equivalent of Interrogation - Defendant's Initiation of Conversation with Officer Following Invocation of Miranda Right to Counsel

    State v. Hambly, 2008 WI 10 (filed 7 Feb. 2008)

    Detective Rindt and his partner approached the defendant in a parking lot outside of his apartment and attempted to speak with him, without taking him into custody, about several drug transactions in which he allegedly was involved. The defendant refused. Rindt then told the defendant that he was under arrest, handcuffed him, and began leading him to the squad car. As Rindt and the defendant walked to the squad car, the defendant said that he wanted to speak with an attorney. Rindt put the defendant in the back seat of the car and told him that he could call an attorney once they arrived at the jail.

    While in the squad car, the defendant told Rindt that he did not understand why he was under arrest. Rindt responded that the defendant had sold cocaine to a named informant on three occasions and that the informant had been cooperating with the police during those transactions. The defendant again stated he did not understand what was going on and told Rindt that he wanted to speak to him and find out what his options were.

    Rindt read the defendant the Miranda warnings. Rindt testified that the defendant said he understood his rights, did not have any questions, and wanted to speak with Rindt about the drug transactions. Rindt then removed the defendant's handcuffs and placed the defendant in the front seat of the squad car. Rindt asked the defendant to review the Miranda waiver of rights form, and the defendant did so. The defendant then signed the Miranda waiver form, and Rindt interviewed him for approximately one hour. During the interview, the defendant admitted to Rindt that he had sold cocaine to the informant on several occasions.

    The state charged the defendant with making multiple cocaine deliveries. The defendant moved to suppress the statements he made to Rindt in the squad car. The circuit court denied the motion, and the defendant subsequently was convicted by a jury on one of the delivery counts. The court of appeals affirmed. See 2006 WI App 256, 297 Wis. 2d 851, 726 N.W.2d 697. In a decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals.

    With respect to the defendant's invocation of his Miranda right to counsel, the state had argued that the defendant was in custody but was not being interrogated, that the defendant's request for an attorney was thus anticipatory, and that the defendant did not effectively invoke his Fifth Amendment Miranda right to counsel (see ¶ 23). The supreme court disagreed. "The defendant effectively invoked his Fifth Amendment Miranda right to counsel when he requested counsel while he was in custody and before the law enforcement officer interrogated him under both a standard requiring only that a suspect be in custody when the request for counsel is made and a standard requiring that interrogation be `imminent or impending when the request for counsel is made.' An invocation of the Fifth Amendment Miranda right to counsel is a defendant's request for the assistance of an attorney `in dealing with custodial interrogation by the police'" (¶ 3).

    The supreme court was divided equally about whether to adopt a temporal standard to determine whether a suspect in custody who requests counsel has effectively invoked his or her Fifth Amendment Miranda right to counsel. "Three justices, Justices Prosser, Roggensack, and Butler, adopt the standard that a suspect may effectively invoke the Fifth Amendment Miranda right to counsel when a suspect is in custody and has made `an unequivocal request to speak with an attorney' even before interrogation is imminent or impending....These three justices conclude that the defendant's request for an attorney in the present case constituted an effective invocation of the Fifth Amendment Miranda right to counsel under the `anytime in custody' temporal standard" (¶ 32) (citations omitted).

    "Three justices, Justices Bradley and Crooks and the author of this opinion [Chief Justice Abrahamson], conclude that they need not, and do not, address whether the appropriate temporal standard to adopt to determine whether a suspect in custody has effectively invoked his or her Fifth Amendment right to counsel is the `anytime in custody' standard or the `imminent or impending interrogation' standard. These three justices conclude that the defendant's request for an attorney in the present case constituted an effective invocation of his Fifth Amendment Miranda right to counsel under the temporal standard of `imminent or impending' interrogation. Because the defendant met this standard, these three justices conclude that the defendant's request for an attorney in the present case also constituted an effective invocation of the Fifth Amendment Miranda right to counsel under the `anytime in custody' standard" (¶ 33). (Justice Ziegler did not participate in this decision.)

    [Editors' Note: In its analysis the court noted that extant caselaw stands for the rule "that a person who is not in custody cannot anticipatorily invoke a Fifth Amendment Miranda right to counsel or right to remain silent" (¶ 41).]

    The supreme court further held that the detective's statements to the defendant explaining why the defendant was being arrested after he effectively invoked his Fifth Amendment Miranda right to counsel and before he was given the Miranda warnings did not constitute interrogation by the officer. "[W]e conclude that Rindt's words and conduct did not constitute interrogation; Rindt did not engage in express questioning or the functional equivalent of express questioning after the defendant effectively invoked his Fifth Amendment Miranda right to counsel. Rindt's statement would not be viewed by an objective observer as the type of comment that would encourage the defendant to make some incriminating remark. A reasonably objective observer could not foresee that Rindt's conduct and words would elicit an incriminating response from the defendant" (¶ 66).

    Lastly, the court considered whether the detective violated the rule that all interrogation must cease after a defendant invokes his or her Miranda right to counsel. See Edwards v. Arizona, 451 U.S. 477 (1981). It concluded that he did not. Even after invoking the Miranda right to counsel, a suspect may thereafter waive his or her Miranda right to counsel. To establish waiver in these circumstances, the state must prove that the suspect initiated further communication, exchanges, or conversations with the police and that the suspect thereafter waived the right to counsel voluntarily, knowingly and intelligently (see ¶¶ 67-70). In this case the court concluded that "[a]fter the defendant effectively invoked his Fifth Amendment Miranda right to counsel, he initiated communication with the law enforcement officer and then voluntarily, knowingly, and intelligently waived his right to counsel, rendering the inculpatory statements admissible" (¶ 3). See also ¶¶ 72-90 (analysis of standards for determining when a defendant "initiates" further communication with the officer).

    Justice Roggensack filed a concurring opinion that was joined by Justice Prosser and in part by Justice Butler. Justice Butler filed a separate concurring opinion.




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