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Miranda – Waiver – Ambiguous Assertion

State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn

Issue/Holding:

¶35   The circuit court relied on statements Markwardt made one hour and eleven minutes into the interview for its ruling that she had properly asserted her right to remain silent. Her exact words were: “Then put me in jail. Just get me out of here. I don’t want to sit here anymore, alright. I’ve been through enough today.” The circuit court cited no case law to support its conclusion that Markwardt’s comments were an unequivocal invocation of her right to remain silent. In fact, because the parties’ circuit court briefs failed to set forth the controlling law, it is questionable whether the circuit court took into account the rule of Ross, which established that an invocation of the right to remain silent must be unequivocal and unambiguous to be effective.

¶36   Under the rule established in Ross, a suspect’s claimed unequivocal invocation of the right to remain silent must be patent. See Ross, 203 Wis. 2d at 75-79. The Ross rule allows no room for an assertion that permits even the possibility of reasonable competing inferences: there is no invocation of the right to remain silent ifany reasonable competing inference can be drawn. See id. Accordingly, an assertion that permits reasonable competing inferences demonstrates that a suspect did not sufficiently invoke the right to remain silent. See id. We therefore reverse the circuit court because Markwardt’s comments permit reasonable competing inferences. … Markwardt did not unequivocally invoke her right to remain silent and Clark was therefore not required to stop the interview. See id.

The court expressly contrasts State v. Goetsch, 186 Wis. 2d 1, 519 N.W.2d 634 (Ct. App. 1994) as an example of expressly invoked rights, ¶28 n. 8 (“I don’t want to talk about this anymore. I’ve told you, I’ve told you everything I can tell you”). Embellishment found in ¶¶23-28, though the passage quoted above is an apt, efficient summary.

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