Interrogation – Ambiguous Request for Counsel
Initial custodial questioning terminated when Linton invoked his right to silence. During subsequent re-interrogation, Linton said, “when I asked for a lawyer earlier, why wasn’t he appointed to me?” The detective indicated that if Linton was asking for a lawyer then the police would “just stop talking to” him. Linton agreed to talk. The trial court found that Linton had not in fact requested counsel during the first interrogation, a finding not challenged and therefore taken as given on appeal. Operative principles are settled:
¶8 The right to counsel is invoked when a suspect expresses a “‘desire to deal with the police only through counsel.’” State v. Jones, 192 Wis. 2d 78, 94, 532 N.W.2d 79 (1995) (citation omitted). Such a statement must be unambiguous—in other words, the suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994). If the suspect makes an ambiguous or equivocal reference to an attorney, officers need not stop questioning the suspect and may clarify the comment. Id.; see State v. Ward, 2009 WI 60, ¶43, 318 Wis. 2d 301, 767 N.W.2d 236.
Applying these principles, the court of appeals agrees with the trial court “that Linton voluntarily waived his right to an attorney when the detective sought clarification in response to Linton’s ambiguous request and Linton agreed to proceed with the interrogation,” ¶11. The court doesn’t quite explain its conclusion, perhaps because it’s self-evident: given that Linton did not in fact previously request counsel, his reference to this non-event necessarily made the detective quizzical about whether Linton indeed was now asserting his right to counsel.
Note that this was a pre-charge interrogation, meaning that 5th, rather than 6th, amendment principles apply. As to the latter: State v. Forbush, currently pending in the supreme court, raises the issue of whether an ambiguous invocation of counsel during 6th (and as opposed to 5th) amendment interrogation requires cessation of questioning.
An aside: you might wonder why the police were allowed to re-interrogate after Linton clearly invoked his right to silence. Turns out he clammed up only because “he did not like these female detectives, … they were somewhat disrespectful and aggressive, he didn’t like their manner and therefore did not want to speak to them,” ¶11. Linton doesn’t raise the point, so the court doesn’t discuss it, but we can assume that his right to silence was scrupulously honored by substituting genteel male for ill-mannered female detectives. Snark aside, it is surely true that the idea Linton knew enough to stiff-arm a couple of detectives he didn’t like strongly suggested that he knew he could put an end to the tag-teaming — had he wanted to.
Joinder of two different homicides, 6 days apart and involving different weapons and co-actors, was proper because of an overlap in evidence:
¶14 We independently examine the propriety of the initial determination of joinder as a matter of law. State v. Locke, 177 Wis. 2d 590, 596, 502 N.W.2d 891 (Ct. App. 1993). “The joinder statute is to be construed broadly in favor of initial joinder.” State v. Hoffman, 106 Wis. 2d 185, 208, 316 N.W.2d 143 (Ct. App. 1982). Joinder may be obtained when two or more crimes “are of the same or similar character.” Wis. Stat. § 971.12(1). “To be of the ‘same or similar character’ … crimes must be the same type of offenses occurring over a relatively short period of time and the evidence as to each must overlap.” State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988).
¶16 We first determine whether the initial joinder was appropriate. Linton contends that joinder was improper because there was an insufficient overlap in evidence. He points out that the only overlapping evidence was the testimony of the medical examiner who conducted the Cuey autopsy and who read the notes prepared by the medical examiner who conducted the England autopsy and the “scant” testimony of the detective who took Morris’s statement connecting Linton to the England homicide.
¶17 In light of the broad construction we afford the joinder statute in favor of joinder, see Hoffman, 106 Wis. 2d at 208, we conclude that the aforementioned overlap in testimony is sufficient because both cases involved homicides that ensued after efforts were made to take property from another (England, attempted armed robbery; Cuey, armed burglary) within an approximately one-week time frame. As further support for this conclusion, we note that if the cases against Linton had been tried separately, testimony would have been introduced connecting the two homicides because it was only through police investigation of the Cuey homicide that they connected Linton to the England homicide. Thus, we agree with the State’s assessment that “the manner in which the England death investigation focused on [Linton], the fact that he was implicated in the Cuey murder was admissible in the England trial to explain to the jury how police identified Linton as England’s assailant.”
Not so much missing altogether but swallowed up by the court’s deference to the joinder decision, the following principle: “because the evidence of each crime would be admissible in separate trials for each, joinder was proper under Wis. Stat. § 971.12(1),” State v. Bruce T. Davis, 2006 WI App 23, ¶14. There, the court granted relief against joinder, concluding that the m.o.’s were different, with no common scheme, and one count likely wouldn’t have been admissible on separate trial of the other. (Same panel, incidentally, that decided this case.) Focus, then, is on admissibility at separate trials: if the evidence would come in anyway, it’s cost-effective to try them together. The State, for its part, argued that the investigation of Cuey’s death led to Morris, who fingered Linton on England’s homicide: “Overlap of the witnesses presented on each offense can justify joinder. United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006).” That case upholds joinder “where the evidence of those counts is intertwined” (further characterized by that court as “significant overlap of the witnesses presented on each offense”). The Linton court bought the argument with little if any embellishment. But here’s the rub: Morris didn’t testify and his statement came in solely through the detective’s testimony; a classic Bruton problem. Maybe there were good tactical reasons not to object on confrontation grounds or, for that matter, not to renew the misjoinder/severance objection. Maybe there weren’t. The court points out: “Linton ‘concede[d] that Mr. Morris could provide admissible testimony at both trials.’ Morris, however, did not ultimately testify at Linton’s trial,” ¶16 n. 5. So you can see the basis for thinking at some point there was some evidentiary overlap. But in the end there was none, not in the sense of admissible testimony anyway, and at no time was there significant overlap.
Now, for what may be a bit of a tangent. It oughtn’t be blithely assumed that the jury is necessarily entitled to know just why the spotlight turned on the defendant. “In contexts other than a photographic identification, the phrase ‘based on information received’ may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person,” State v. Branch, 182 N.J. 338, 865 A.2d 673 (2005). In other words, this is a highly fact-contingent problem, with admissibility as a last rather than first resort. This path is also strewn with potential confrontation hazards. U.S. v. Maher, 454 F.3d 15, 23 (1st Cir 2006) (“The dividing line often will not be clear between what is true background to explain police conduct (and thus an exception to the hearsay rule and thus an exception to Crawford) and what is an attempt to evade Crawford and the normal restrictions on hearsay.”). Making the same sort of point: U.S. v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004); U.S. v. Price, 458 F.3d 205, 210 (3rd Cir 2006) (“courts must not allow the government, in the guise of ‘background explanation’ testimony by police officers, to put before the jury eyewitness accounts of bad acts by the defendant that the jury would not otherwise have heard”). Whether these sorts of problems actualized themselves in Linton’s trial can’t be ascertained, but the careful litigator might want to be sensitive generally to this potentially recurrent problem.
The other instances of “overlap” — one medical examiner read the notes of another examiner in a separate autopsy; both involved homicides and (attempted) theft — seem insubstantial (with the first example raising a potential confrontation problem as well). One count alleged that the victim was shot on a street by one of two people. The other, that the victim died from blunt force trauma to the head from bolt cutters, during a burglary participated in by 3 individuals, ¶¶2-3. Some “overlap.”
Evidence – Autopsy Photos
Autopsy photographs were properly admitted into evidence, on the felony-murder count:
¶28 As explained by the trial court, if the jury determined that Linton was guilty of felony murder as a party to the crime, the verdict form directed it to determine, as a penalty enhancer, whether Linton committed the underlying crime of burglary while armed with a dangerous weapon. The statutory definition of a “dangerous weapon” includes any “instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.” Wis. Stat. § 939.22(10). Bolt cutters are not generally considered a dangerous weapon but can be as used here. After reviewing the photographs, we conclude that the trial court properly exercised its discretion in admitting them into evidence. The trial court was sensitive to the nature of the photos, mindful of the potential prejudice and concluded that this was outweighed by their probative value. Under our deferential standard of review, we cannot say that the trial court erroneously exercised its discretion when it allowed the photographs to be presented during Linton’s trial. Cf. Sage v. State, 87 Wis. 2d 783, 790, 275 N.W.2d 705 (1979).