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State v. Matthew A. Lonkoski, No. 2010AP2809-CR, WSC review granted 10/16/12

on review of unpublished decision; case activity

Issue (composed by On Point) 

Whether, after asserting his right to counsel, Lonkonski initiated further communication with the police so as to allow admissibility of his ensuing statement, Edwards v. Arizona, 451 U.S. 477, 483-85 (1981).

There may be a threshold dispute as to whether Lonkoski was in custody at the time he asserted his right to counsel, but the court of appeals assumed he was (“We need not decide whether Lonkoski properly invoked his right to counsel because he later initiated further conversation with the police, effectively waiving that right,” ¶4), and the Issue above is limited to the holding articulated below. The following discussion by the court of appeals captures this issue:

¶8        After Lonkoski said he wanted a lawyer, neither Wood nor Gardner asked any further questions until Lonkoski reinitiated the interview.  They merely explained that they were not accusing him.  They explained that they could not continue the interview if the only motivation for Lonkoski to waive his right to counsel was to avoid jail.  The officers’ declaratory statements did not call for any response.  Their responses to his questions are not interrogation because they did not call for a response and were not designed to illicit an incriminating response.  Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980); see also United States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001); United States v. Conley, 156 F.3d 78, 83 (1st Cir. 1998); United States v. Benton, 996 F.2d 642, 643-44 (3rd Cir. 1993); United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993); United States v. Jackson, 863 F.2d 1168, 1172 (4th Cir. 1989).  The officers’ statements that they must stop talking to Lonkoski because he invoked his right to counsel did not constitute the functional equivalent of interrogation.  See State v. Hampton, 2010 WI App 169, 330 Wis. 2d 531, ¶¶10-14, 793 N.W.2d 901.

¶9        Lonkoski argues that the statement, “You are now” conveyed that he was under arrest because he asked for an attorney rather than merely after he asked for one.  Wood’s statement did not make that connection, and Gardner soon after disclaimed any linkage between Lonkoski’s invocation of his right to counsel and his arrest when he explained, “we can’t talk to you just because you don’t want to go to jail,” correcting any misimpression Lonkoski may have had about the linkage.  The statement “You are now[]” merely placed Lonkoski under arrest, which does not constitute further interrogation.  Innis, 446 U.S. at 301.

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