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Defendant’s request for a “public pretender” deemed a big joke

State v. Johnny Jerome Jones, 2014AP342-CR, 3/24/14, District 1 (not recommended for publication); click here for docket and briefs

Jones turned himself in for a hit-and-run accident that resulted in death.  During the interrogation, and after being Mirandized, he asked the detective: “So ya’ll can get a public pretender right now?” The detective laughed and replied: “You said it right, pretender . . . . they’re called public defenders . . . Um, we obviously due to the time right now, we can’t, um . . . .” Jones moved to suppress his subsequent statement and lost at the circuit court and on appeal.

A defendant must invoke his 5th Amendment right to counsel unambiguously. Davis v. United States, 512 U.S. 452, 459 (1994). The court of appeals held that Jones was only “joking” when he requested counsel and that a “joking” request for counsel is an “ambiguous” or “equivocal” one.

We have reviewed the audio recording submitted into evidence and conclude that it supports the circuit court’s findings that Jones’s reference to a “public pretender” was made in “sort of a joking manner,” and that Jones was “laughing at this comment” with the detectives.  Jones believes that the audio recording reveals that his “tone was non-descriptive” and that “it is not possible to tell from the recording who laughed—Mr. Jones or the officers.”  We disagree.  A reasonable interpretation of the audio recording is that Jones made the statement with a joking tone—his reference to a “public pretender,” rather than a “public defender,” reveals as much.  And laughter from three different individuals—two detectives and Jones—can be reasonably inferred from the recording.  In short, the circuit court’s findings are not clearly erroneous. Slip op. ¶12.

A joking reference to a “public pretender” is ambiguous by its very nature.  The joking nature of Jones’s statement—supported by the circuit court’s finding that Jones’s tone was “joking” and that Jones and the detectives laughed about the comment—as well as the content of Jones’s statement—that is, his reference to a “public pretender,” rather than a public defender—would not lead “‘a reasonable police officer in the circumstances [to] understand the statement to be a request for an attorney.’”  See Jennings, 252 Wis. 2d 228, ¶30 (citation omitted). Slip op. ¶15.

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