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Non-custodial interrogation became custodial, so Miranda warnings were required

State v. Brian D. Frazier, 2017AP1249-CR, District 4, 8/2/18 (not recommended for publication); case activity (including briefs)

Frazier agreed to drive himself to the police station to answer some questions and was assured when the questioning began that he was not under arrest and did not have to answer questions. But the initial non-custodial encounter was transformed into custody for purposes of Miranda by the officer’s subsequent words and actions, triggering the need for the Miranda warning.  The officer never read Frazier the warning, so the confession he gave must be suppressed.

Miranda custody occurs when a reasonable person would not feel free to terminate the interview and leave the scene. State v. Bartelt, 2018 WI 16, ¶31, 379 Wis. 2d 588, 906 N.W.2d 684. Whether that standard is met is based on the totality of the circumstances, so the determination is necessarily fact dependent. Anyone litigating a similar issue will want to study the facts of this case (¶¶14-20) along with the court’s rejection of the state’s arguments for why Frazier wasn’t in custody (¶¶27-34). Here is the heart of the court’s analysis as to why “the cumulative effect of the …. facts, taken together, tipped the scale in favor of custody by the time Frazier confessed.”

¶22     The scale first began to move when, after Frazier became visibly agitated and started to mumble inaudibly, [Lt.] Weiner asserted that “We’re not done yet either.” This statement was a show of Weiner’s authority and could have been understood as being inconsistent with Weiner’s earlier statement that Frazier did not have to talk to Weiner. See Bartelt, 379 Wis. 2d 588, ¶38. However, this was a relatively mild show of authority, and would not tip the scales by itself.

¶23     The interaction became more pointed shortly thereafter, when Weiner clearly manifested his belief that Frazier was culpable. He told Frazier, “[i]t’s not really going to make any difference in what’s going on here tonight”… and “I believe [R.M.S.’s] statement and his statement was that it was you.” The Supreme Court has stated that

an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.

Stansbury v. California, 511 U.S. 318, 325 (1994); see also State v. Mosher, 221 Wis. 2d 203, 216-217, 584 N.W.2d 553 (Ct. App. 1998). Still, however, if this is all that had happened, we would not consider Frazier to be in custody. We learn from Bartelt that even a confession to a serious offense may not be sufficient to tip the scales into a custodial status. Bartelt, 379 Wis. 2d 588, ¶¶45, 48.

¶24     The tipping point occurred when Weiner told Frazier in a commanding manner, “I don’t want you calling anybody until we’re done talking, okay” and then firmly closed the door to the interview room. It is significant that this occurred at the moment when Weiner had decided to interrupt the flow of questioning and leave Frazier by himself in the interview room. Weiner set a distinctly different tone from much of what had occurred to that point in the interrogation by commanding that Frazier not use his phone and stay in the room until Weiner returned.

¶25     It is true that the phrase “[j]ust chill and gather your thoughts” in part conveyed the idea that Frazier—who, as we have noted, had exhibited frequent signs of distress to that point in the interrogation—was supposed to sit back and relax while he waited for Weiner to return. However, taken in context, this also conveyed that Frazier was being told to remain in the room, particularly when accompanied by the firm closing of the door, and that he was at that point under the control of law enforcement.

¶26     In summary, we conclude that a reasonable person told he or she could not use his or her phone, not only “until we’re done talking,” but also while the officer was away, in combination with the other circumstances previously described, would also conclude that he or she was not free to leave.

The court of appeals reached the Miranda issue through two levels of ineffective assistance of counsel: Trial counsel, for failing to file a suppression motion before advising Frazier to plead no contest; and Frazier’s first postconviction counsel, who filed an unsuccessful motion challenging Frazier’s plea on grounds unrelated to the Miranda issue and, having overlooked the issue, didn’t allege trial counsel was ineffective for failing to move to suppress. Postconviction counsel first noted the Miranda issue while writing a no merit report after the unsuccessful challenge to the plea, and moved to dismiss the no merit appeal and reinstate Frazier’s postconviction motion rights. (¶¶4-6). That the suppression motion would have succeeded establishes deficient performance, but on remand Frazier will still have to prove prejudice—namely, that if trial counsel had filed the successful suppression motion, Frazier would have insisted on going to trial rather than entering a plea. (¶¶7-9, 36).

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