Green sought to suppress incriminating statements she made to police both before and after being given the Miranda warnings. The court of appeals holds that the pre-Miranda statement Green made was not the product of interrogation, so it’s admissible. As for the statements she made after the warnings, the court rejects her argument that she invoked her right to remain silent and so interrogation should have ceased.
Police arrested Green and Winzer, her boyfriend, in connection with a robbery in which the victim’s credit cards were taken. Their arrest came after police identified Cowser trying to use the cards with an unknown woman; Cowser in turn identified Green as the woman and told police Green and Winzer committed the robbery. (¶5).
Without first reading the Miranda warnings, a detective told Green about some of the evidence that led to her arrest. The detective also said they knew Green wasn’t involved in the robbery, “but we know you know who did, okay? And it’s not fair for us to try and put that on you if you ain’t the one that did it….” Twice the detective asked Green to agree that “it’s not fair” for police to accuse her of the robbery if she wasn’t involved, “right?” and Green agreed. The detective then advised Green they’d talked to Cowser, and Green said “that’s who I got the cards from.” (¶¶6, 29).
The court of appeals holds that Green’s statement wasn’t obtained in violation of Miranda because the detective’s comments weren’t the functional equivalent of interrogation under Rhode Island v. Innis, 446 U.S. 291 (1980), and State v. Hambly, 2008 WI 10, 307 Wis. 2d 98, 745 N.W.2d 48. Innis defined the “functional equivalent” of interrogation as “any words or actions on the part of the police … that the police should know are reasonably likely to elicit an incriminating response from the suspect.” 446 U.S. at 301. Hambly held that “[c]onfronting a suspect with incriminating physical evidence, or verbally summarizing the State’s case against the suspect, does not necessarily constitute the functional equivalent of express questioning.” 307 Wis. 2d 98, ¶57. Says the court:
¶30 [The relevant] part of the interview consists of [Detective] Reaves explaining what evidence the State has and the investigation to that point—the identification of Michael Winzer as the robber, the video showing Green, the fact that Green had “dumped” the credit cards in the sewer grate, and the fact that Cowser was in custody—and explains “that’s why we got you down here and everything.” Green then interjects an inculpatory statement. However, the fact that Green volunteered the statement does not change the nature of the comments and questions from Reaves. As in the cases reviewed above, the detective in this case was “[c]onfronting a suspect with incriminating physical evidence, or verbally summarizing the State’s case[.]” See id. This permitted recitation of facts was not “reasonably likely to elicit an incriminating response from the suspect.” See Innis, 446 U.S. at 301 (footnote omitted). We therefore conclude that Green was not subject to custodial interrogation, and her statement “That’s who I got the cards from” is admissible.
This cursory analysis ignores the detective’s numerous embedded questions (“Okay?” “Right?”) and the repeated query about whether it would be fair to accuse Green of something she didn’t do. This was not the “matter-of-fact communication of the evidence” condoned in Hambly or Easley v. Frey, 433 F.3d 969, 974 (7th Cir. 2006), on which the court of appeals relies (¶¶25-28); rather, the detective’s actual questions, especially the one about being fair to Green if she’s innocent, would “reasonably have had the force of a question on the suspect.” Hambly, 307 Wis. 2d 98, ¶56.
After Green’s admission that she possessed the cards, the detective read the Miranda warnings. After Green affirmed she understood her rights, the detective asked if she was willing to make a statement. Green said “No. I don’t know nothing.” The following exchange ensued (¶8):
Detective: Okay, so you’re telling me you don’t want to talk to me right now, you don’t want to clear your name on this?
Green: I ain’t did nothing.
Detective: Ok, well, that’s what I’m saying. Just, we have to clarify that. Do you want to talk to me and clear your name, or, or–
Green: Yeah. Yeah, I’ll talk but the only thing I can say is I ain’t did nothing.
Green argues she was asserting her right to remain silent and the questioning should have stopped, but the court disagrees.
“[A]n assertion that permits reasonable competing inferences demonstrates that a suspect did not sufficiently invoke the right to remain silent.” State v. Markwardt, 2007 WI App 242, ¶36, 306 Wis. 2d 420, 742 N.W.2d 546. Where “there are reasonable competing inferences to be drawn from them[,]” a defendant’s comments “are equivocal as a matter of law[.]” Id. In particular, where it is reasonable to infer that a defendant’s statement is a “proclamation of innocence,” the statement is not an unambiguous invocation of the right to remain silent, because “a proclamation of innocence is incompatible with a desire to cut off questioning.” State v. Cummings, 2014 WI 88, ¶64, 357 Wis. 2d 1, 850 N.W.2d 915. Under these cases, Green’s response of “No, I don’t know nothing” was a proclamation of innocence and a disclaimer of knowledge, not an unambiguous invocation of her right to silence. (¶¶31-35).