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Custodial Interrogation: Request for Counsel – Waiver of Rights – Invocation of Counsel – Assertion of Right to Silence

State v. Patrick E. Hampton, 2010 WI App 169 (recommended for publication); for Hampton: Michael S. Holzman; BiC; Resp.; Reply

Custodial Interrogation – Request for Counsel

To invoke the 5th amendment right to counsel during custodial interrogation, the suspect must assert the right unambiguously, something Hampton did not do.

¶30      Hampton alleges that detectives ignored him and continued to inappropriately question him five minutes into the July 20 interview, when he stated:  “I really don’t want to say nothing.  I don’t have no lawyer.  And understand, like I said, he [Detective Peterson] told me to say nothing.”  Here, simply stated, Hampton did not unambiguously request counsel.  Instead, he merely stated a fact:  that he did not have an attorney.  At best, the statement suggests that Hampton might want counsel, but that is not enough to invoke his right to one under the Fifth Amendment.  See id.  Hampton was required to do more and detectives did not err in continuing to question him.  See id. 

Hampton couldn’t assert, at that point, a 6th amendment right to counsel, which requires the existence of a criminal complaint or arrest warrant, ¶¶25-26. However, unless the supreme court reverses the court of appeals in the currently pending State v. Forbush, 2010 WI App 11, the test for assertion of right to counsel is the same, whether in the 5th or 6th amendment context; if Hampton didn’t adequately assert his 5th amendment right, he perforce didn’t assert it under the 6th (assuming the latter right had attached).

Custodial Interrogation – Waiver of Rights

Waiver of Miranda rights need not be explicit, therefore, Hampton’s “indistinct” response, on the interrogation audiotape, to police request to talk isn’t decisive.

¶33      Here, the audio tape demonstrates that after Detective Heier read Hampton the Miranda rights Hampton answered “yes, sir” when asked if he understood those rights.  Moreover, the record shows that Hampton had been read his Miranda rights on previous occasions and was familiar with those rights prior to when they were read to him by Detective Heier.  In short, there is ample evidence that Hampton was read his rights and understood them.

¶34      Additionally, Hampton’s statements to Detective Heier were not coerced.  Nor does Hampton argue that they were.  While the audio tape does not demonstrate, what, if anything, Hampton said immediately after Detective Heier asked him if he wanted to talk to the detectives, Hampton’s subsequent statements demonstrate a willingness to talk.  Throughout the interrogation, Detective Heier repeatedly told Hampton that Hampton was “in charge” and that Hampton could stop the questioning whenever he wanted to, “pick and chose” the questions he wished to answer, or talk to a lawyer.  Hampton’s decision to continue answering questions, knowing his rights, amounts to an implicit waiver of his Miranda rights.

The court also stresses Hampton went on to waive his rights expressly, ¶35.

Custodial Interrogation – Invocation of Counsel – Reinitiation of Interrogation

Well into the interrogation, Hampton asserted his right to counsel by asserting, “I just want to talk to a lawyer.” The detectives immediately ceased interrogation, but did ask if Hampton had a specific lawyer he wanted them to call – that question fell within the exception that “the police can ask simple questions with the goal of insuring that the accused is provided with counsel,” ¶38, quoting State v. Lagar, 190 Wis. 2d 423, 432, 526 N.W.2d 836 (Ct. App. 1994). On hearing that Hampton had no particular attorney in mind, the detectives got up to leave, thus terminating the interrogation. Hampton’s reaction amounted to his own inititation of further contact.

¶42      Here, after Hampton requested to speak with an attorney, the detectives scrupulously respected that request and began to leave.  Hampton then asked the detectives if they were leaving.  Detective Heier answered appropriately, explaining to Hampton that he had a right to speak with counsel and because he invoked that right the detectives were going to end their questioning, stating:  “Yeah.  If you wanna talk to a lawyer, we’re not going to talk to you….  You’re in charge.…  If you want a lawyer, I respect that and I’ll honor that.”  Hampton later told the detectives, “I really do want to talk to you guys.…  I just need some time.”

¶43      Under either test set forth in Bradshaw, the culmination of Hampton’s statements with detectives from “I just don’t want you guys to leave right now” and ending with “I really do want to talk to you guys,” demonstrates an initiation of communication with the detectives.  It is reasonable to conclude that Hampton wished to continue talking about the circumstances surrounding Stovall’s death, as that had been the focus of his conversation with the detectives for several hours.   Detectives honored Hampton’s request for a thirty to forty minute break to read the Bible and pray before continuing to speak with detectives, and Detective Heier reread Hampton his Miranda rights before continuing to interrogate him an hour later.  At that time, Hampton acknowledged that he understood his rights and expressly waived them before talking with the detectives.

¶44      Therefore, although Hampton did ask to speak with a lawyer, we conclude that detectives honored that request until Hampton initiated further communication with the detectives and Hampton again waived his Miranda rights.

Custodial Interrogation – Assertion of Right to Silence

¶47      Hampton contends that he asserted his Fifth Amendment right to remain silent when he made the following statement during the first five minutes of the July 20 interrogation:

He [Detective Peterson] told me to talk to nobody but him.… I know how this stuff go, OK. I really don’t want to say nothing.… And understand, like I said, he told me to say nothing.… I know how it go. Good cop, bad cop.… He told me to talk to him.

This statement did not sufficiently invoke Hampton’s right to remain silent.

¶48      Reviewing his statement in context, “‘a reasonable [detective] in the circumstances would understand the statement to be’” a desire to speak only to Detective Peterson and not a desire to end questioning all together.  Id. (citation omitted).  Hampton’s desire to speak to a specific detective is not an invocation of the right to remain silent.  See State v. Owen, 202 Wis. 2d 620, 641, 551 N.W.2d 50 (Ct. App. 1996) (“The declaration that [the suspect] did not wish to speak to a specific officer is not the invocation of his right to remain silent.”).  And detectives were not obligated to ask Hampton for clarification.  See Ross, 203 Wis. 2d at 78.

¶49      Consequently, because Hampton did not invoke his right to remain silent, and because (as we concluded previously) Hampton waived his Miranda rights, we affirm the circuit court.

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