Yang was being interrogated about the shooting death of his ex-wife’s boyfriend when he invoked his right to counsel. Interrogation ceased and he was taken to jail. (¶¶3, 5). Several hours later, Gomez, a homicide detective, visited Yang in jail. (¶7). Gomez had not been involved in the earlier interrogation, but he did help execute a search warrant at Yang’s home, during which he learned Yang was a Vietnam war veteran. (¶¶4, 6). Gomez was a veteran, too, and considered Vietnam vets to be “heroes,” so he “wanted to see if Yang needed anything, ‘such as food other than the jail’s bologna sandwiches.” (¶7). Yang had difficulty understanding English, but during a five-minute encounter Gomez conveyed he was a fellow vet and that it was an “honor” to speak with Yang; “explained through hand signals to call him if he needed anything, such as food or water”; and gave Yang his business card. When Yang attempted to talk about his ex-wife, Gomez stopped him. (¶¶8-9). Some hours later Yang wordlessly handed Gomez’s card to the jailer. Assuming this act meant Yang wanted to talk to Gomez, the jailer called Gomez. When Gomez and a translator went to Yang’s cell, he confirmed he wanted to talk about the allegations even though no lawyer was present. (¶¶11-15). Yang was given Miranda warnings and, after questioning, confessed. (¶15).
Once Yang invoked his right to have counsel present during interrogation, he was not subject to further interrogation until counsel has been made available to him, unless he himself initiated further communication or conversation with police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). As analyzed by the court, the issues on appeal are whether Gomez’s visit to Yang constituted interrogation after Yang’s invocation of his right to counsel, and, if it did not, whether Yang initiated the later interrogation by handing Gomez’s business card to the jailer.
Functional equivalent of interrogation
The court holds that Gomez’s visit to Yang’s jail cell was not the functional equivalent of interrogation and therefore did not violate the rule in Edwards:
¶25 … Gomez’s conduct was significantly more neutral and attenuated than the officers’ conduct in Innis, Cunningham, and Hambly—all cases in which courts held that no interrogation, or its functional equivalent, had occurred. Here, Gomez did not confront Yang with incriminating physical evidence, make offhand remarks about the risks of failing to discover a weapon, or summarize facts about the State’s case against Yang. Rather, Gomez’s words and conduct constituted nothing more than small talk regarding military service and whether Yang needed anything, such as food or water. Gomez’s initial visit lasted no more than five minutes. Gomez did not perform any express questioning, nor did he even mention the investigation or the facts leading to Yang’s arrest. When Yang mentioned his ex-wife, Gomez immediately indicated to Yang to stop talking. Based on these facts, we agree with the circuit court’s conclusion that an objective observer would not conclude that such “small talk” was likely to elicit an incriminating response. See State v. Kramar, 149 Wis. 2d 767, 789, 440 N.W.2d 317 (1989) (finding that an officer’s “small talk” with the defendant about school and his family was not interrogation because it was not reasonably likely to elicit an incriminating response).
The court also concludes the record does not show that Gomez used his knowledge Yang was a veteran to appeal to Yang’s vulnerability or that Gomez’s visit was designed to elicit an incriminating response:
¶27 Nothing in the record suggests that Yang was disoriented or upset by the topic of war service, nor does the record suggest that Gomez used Yang’s war service to persuade Yang to discuss matters relating to the investigation. See Cunningham, 144 Wis. 2d at 278 (quoting Innis, 446 U.S. at 302 n.8) …. Rather, the circuit court found that Gomez credibly testified that he told Yang to contact him for “food, water or comforts,” and that the small talk was not an “open invitation necessarily to simply … contact [Gomez] if [Yang] ha[d] anything … to say, which might be more of an open invitation to give [Gomez] a statement.” We also note that Gomez’s testimony that he and Yang communicated by hand signals demonstrates a significant language barrier that supports the finding that no interrogation, or its functional equivalent, occurred.
Initiation of further communication by defendant
Yang’s act of handing the jailer Gomez’s business card, combined with his initial statements to Gomez when he returned to Yang’s cell, constituted an initiation of interrogation under either test expressed in Oregon v. Bradshaw, 462 U.S. 1039 (1983):
¶32 Yang argues that his holding of the business card out his cell door did not demonstrate a willingness generally to discuss the investigation (under the Bradshaw plurality’s test) nor did it constitute dialogue about the subject matter of the criminal investigation (under the Bradshaw dissent’s test). We agree that by itself the physical act of holding the business card out to Brown did not constitute further communication about the investigation. However, immediately upon his arrival to Yang’s cell, Gomez asked Yang, through an interpreter, if Yang had asked for him. Yang confirmed that he had, thereby confirming that his presentation of Gomez’s card meant that he wanted to talk to Gomez. Moreover, Yang then stated that he wanted to speak about the allegations. The circuit court found Gomez’s testimony to be credible regarding these events. Yang’s confirmation that he wanted to speak with Gomez, along with his immediate statement about wanting to discuss the allegations, demonstrated an obvious interest and willingness to discuss the investigation and constituted dialogue about the subject matter of the criminal investigation. Therefore, these facts support the circuit court’s finding that Yang initiated communication with Gomez under both Bradshaw tests.
The court distinguishes State v. Conner, 2012 WI App 105, 344 Wis. 2d 233, 821 N.W.2d 267, where police officers brought Conner to an interrogation room on their apparently mistaken belief that Conner had requested to speak with them, although Conner had already requested counsel three times, and, after the interrogation ended, Conner never asked to resume discussions with the detectives. “Here, when Gomez appeared, Yang confirmed that he had asked for Gomez by holding out Gomez’s business card and then immediately stated that he wanted to discuss the allegations.” (¶33).
A straightforward application of Edwards—or is it? The court asks if Gomez’s conduct amounts to interrogation and then asks if Yang initiated further contact as that is understood under Bradshaw. But this approach obscures another issue: Whether Yang initiated contact on his own, or whether Gomez’s conduct led Yang to initiate contact.
Edwards holds that a suspect who has invoked the right to counsel can’t be interrogated again until counsel has been made available, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” (451 U.S. at 484-85). Some courts have very logically read this to mean the “impetus” for the conversation must come from the accused, not the police. E.g., Metcalf v. State, 681 S.W.2d 344, 345 (1984). It also means, as a standard treatise puts it, that “if there has been some kind of police conduct preceding and allegedly contributing to the defendant’s supposed ‘initiation,’ the question becomes how that conduct is to be judged in determining where the ‘impetus’ lies.” LaFave, et al., Criminal Procedure § 6.9(f), at 844-45 (3d ed.2007). LaFave notes two views of what police kind of conduct counts here: Some courts—like the court in this case—treat police conduct as relevant only if it amounts to interrogation; others say the conduct need not amount to interrogation.
The decision to focus on whether there was interrogation probably flows from language in Edwards itself, which prohibits “further interrogation” unless the suspect has his lawyer present or initiates contact. But even if the paradigmatic case may well involve police engaging in interrogation, Edwards’s injunction against further interrogation can’t mean police may do anything short of interrogation to get the suspect to initiate further interrogation; that opens up an end-run around Edwards. The Court has recognized this, though perhaps only obliquely. Bradshaw, for instance, describes Edwards’s rule as designed to protect an accused from being “badgered” in the way Edwards was, 462 U.S. at 1044, and Smith v. Illinois, 469 U.S. 91, 98 (1984), citing Bradshaw, says: “In the absence of [Edwards’s] bright-line prohibition, the authorities through ‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.”
That said, for police conduct that is not interrogation to rise to “badgering” or “overreaching” that violates Edwards, it will likely have to be egregious. A recent example is Dorsey v. United States, No. 06-CF-1099, 2013 D.C. App. LEXIS 3 (D.C. Cir. Jan. 3, 2013) (en banc), where the defendant asked for a lawyer after several hours of interrogation but was thereafter subjected to what the court aptly termed “badgering with a vengeance,” which included some further interrogation. Rejecting the government’s claim that the only relevant questions for the “initiation” test are what the defendant did and said to initiate contact, the court said Edwards’ suspect-initiation requirement was meant to provide meaningful additional protection against “badgering” tactics and therefore those tactics must be relevant to whether the suspect made a valid initiation.
Gomez’s conduct was obviously nothing like the “badgering with a vengeance” in Dorsey. But as Smith says, “badger[ing]” or “overreaching” can be “explicit or subtle, deliberate or unintentional.” Even giving credence to Gomez’s respect for Vietnam vets, he was, after all, connected to the investigation by having helped execute the search warrant, and his conduct certainly resembles the first half of a “good cop/bad cop” routine: Conveying respect for Yang and concern about his needs, trying to build trust and rapport and an “exchange dynamic” so that Yang will confess. Focusing on whether Gomez’s conduct constituted interrogation means the court gives only glancing attention (¶27) to the possibility Gomez’s acts provided impetus for Yang’s initiation, even though they weren’t likely to elicit immediately an incriminating response. But even if closer attention to that question wouldn’t change the result here, it might be worth thinking about in other cases where a suspect has invoked the right to counsel, was thereafter subjected to police contacts not amounting to interrogation, and later “initiated” further interrogation by contacting police.