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Miranda-Edwards Rule – Invocation of Counsel, Suspect’s Initiation of Contact; Binding Authority – Overruled Court of Appeals Decision

State v. David W. Stevens, 2012 WI 97, affirming unpublished decisioncase activity

Miranda-Edwards Rule – Invocation of Counsel, Initiation of Contact by Suspect

Where an in-custody suspect invokes his right to counsel and interrogation immediately ceases, but the suspect himself then initiates a request to continue the interrogation, the police may proceed with questioning if fresh Miranda warnings are given and validly waived. Edwards v. Arizona, 451 U.S. 477 (1981), applied.

¶52  The Edwards Court did not adopt the assertion in Justice Powell’s concurring opinion that “police legitimately may inquire whether a suspect has changed his mind about speaking to them without an attorney.”  Edwards, 451 U.S. at 490 (Powell, J., concurring).  On the contrary, police may not “inquire” until the accused himself has initiated further communication with them, opening the door to further discussion.[8]  When the accused initiates communication with police, the paradigm is reset and police may explore whether the accused is willing to answer questions.  They may proceed with custodial interrogation if the accused again is given a Miranda warning and again waives his Miranda rights.  See Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (plurality opinion).[9]

Stevens asserted his right to counsel, interrogation ceased, and Stevens almost immediately said he’d changed his mind and wanted to speak after all, ¶18. Had the detective obtained a fresh waiver of rights then and there, the issue probably would have died on the vine. But the detective had to leave the building, and while Stevens cooled his heels, his attorney on a pending, unrelated case showed up (after a call from Stevens’ mother) and was denied access to her client. The detective came back, picked up where he left off, and after securing a new waiver of rights, obtained the statements at issue. Did the attorney’s appearance matter? No:

¶55  Stevens asserts, however, that Detective Haines could not resume questioning, even with an explicit waiver from Stevens, because Stevens was not informed and did not know that his attorney in a different case had attempted to see him.  He cites Middleton to support this contention.  Stevens contends that Waukesha police had a constitutional duty to give the attorney access to Stevens or at least inform Stevens that the attorney was trying to see him.  Stevens argues that without the benefit of conferring with counsel or being informed that counsel had attempted to see him, he could not make a knowing, intelligent, and voluntary waiver, and police had no right to approach him to ask for one.

¶56  This argument requires the court to examine additional cases.  The Supreme Court has held that defendants can waive the Sixth Amendment right to counsel, even if already represented, without speaking to counsel about the waiver.  Michigan v. Harvey, 494 U.S. 344, 353 (1990); see also Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 2085 (2009) (“The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled.”).  If a person can waive his Sixth Amendment right to counsel without speaking to counsel about the waiver, an individual should be able to waive his Fifth Amendment right inasmuch as the individual——who is still uncharged——normally does not yet have counsel.

The situation, the court suggests, is similar to Moran v. Burbine, 475 U.S. 412 (1986) (failure to inform suspect of attorney’s unsuccessful attempt to contact him didn’t affect otherwise valid waiver), ¶¶59-69.

¶70  This brings us back to the present case.  This case is distinguishable from Burbine, Hanson, and Ward on the simple fact that at 10:35 a.m. Stevens invoked the right to counsel.  If nothing else had happened, Detective Haines would not have been able to approach Stevens again, would not have been able to ask him whether he was willing to talk, and would not have been able to administer a new Miranda warning.  This follows the rule in Edwards See also Arizona v. Roberson, 486 U.S. 675 (1988); Minnick v. Mississippi, 498 U.S. 146, 153 (1990) (“[W]e now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.”).

¶71  But something else happened. …

¶74  Thus, Stevens withdrew his request for counsel.  He cancelled his invocation of the right to counsel by initiating a dialogue in which he asked to continue the interrogation. …

State v. Middleton, 135 Wis. 2d 297, 399 N.W.2d 917 (Ct. App. 1986) “is factually distinguishable from this case and is now completely overruled on the merits,” ¶¶5, 90.

Binding Authority – Overruled Court of Appeals Decision 

¶80  This court’s decision in Blum in 2010 provided a standard that the court of appeals and this court could apply in evaluating the precedential value of a prior court of appeals decision that this court subsequently overruled.  In two places in the opinion, the court concluded that “[a] court of appeals decision loses all precedential value when it is overruled by this court.” Blum, 326 Wis. 2d 729, ¶¶3, 57.  The court now reaffirms this principle as a general rule.  Hence, if this court overrules a court of appeals decision without further comment, the court of appeals decision has no precedential value.  The policy reasons for this rule are explained in Blum.  Id.,¶¶46-56.

¶91  In 2010, after a great deal of internal discussion, the Blum court made a determination that overruled court of appeals decisions should have no precedential value unless this court expressly states that it is leaving portions of the court of appeals decision intact.  We realize now that it is much easier to apply this rule prospectively than it is to apply it retroactively.[12]  We think the Blum rule should be applied retroactively but with the following caveat.

¶92  The “overruled unless” test cannot be applied retroactively with the same rigor that it can be applied prospectively because, before the Blum decision, this court did not have any agreed upon language to partially overrule a court of appeals decision, except an announcement that the court is “withdrawing” language from a decision.  Thus, as noted above, courts may have to interpret cases from this court that were decided prior to Blum to determine whether an opinion “overruling” a court of appeals decision really intended to overrule the entire decision or only a portion of it.

¶93  In cases prior to Blum, if this court did not use any qualifying language in overruling a court of appeals decision, it probably intended to overrule the decision in its entirety, as Blum holds.  However, if this court utilized qualifying language, it probably intended something less than a total overruling and the surviving portion of the partially overruled decision may be cited as precedent.

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