Interrogations – Miranda-Edwards Rule – Unequivocal Request for Counsel
The issues on a request-for-counsel challenge to in-custody interrogation are whether the individual unequivocally invoked his right to counsel and, if so, whether he subsequently reinitiated questioning, Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Although the trial court found that Conner’s requests for counsel were equivocal, the court of appeals holds otherwise:
¶20 We disagree; the record makes clear that Conner unequivocally requested an attorney. The first time Conner requested counsel, he said “I want to talk to ya’ll, but I want an attorney present.” Immediately thereafter, he asked “how soon can that be arranged? Today?” The second time Conner requested counsel he said, “Yes, I, I would like one,” referring to an attorney. The third time Conner requested counsel he said, “I want to consult with a lawyer and talk to the lawyer, ok? You know. And then, man, it’s not going to take that long for me to call ya’ll.” There is nothing equivocal or ambiguous about this third request. Thus, we do not have to assess on our de novo review whether the first two requests were ambiguous, as the trial court concluded, or clear. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on narrowest possible ground). Conner’s request was similar to the defendant’s unequivocal request in Edwards, where the defendant said he wanted an attorney before making a deal. See id., 451 U.S. at 479. In contrast, Conner’s requests differ significantly from Davis, where a defendant who continued to answer questions after saying, “‘[m]aybe I should talk to a lawyer,’” was found not to have made an unequivocal request for counsel. Seeid., 512 U.S. at 455, 462 (emphasis added). It also differs from Ward, where a defendant who asked whether she should have a lawyer during questioning was found not to have made an unequivocal request for counsel. Seeid., 318 Wis. 2d 301, ¶¶29, 43.
¶21 The trial court’s determination and the State’s arguments that Conner’s requests were equivocal confuse the issue because they relate to whether Conner reinitiated questioning. … Once Conner clearly and unequivocally requested counsel, he had no obligation to re-assert his previously-invoked right. Seeid. at 484-85.
¶22 Similarly, Conner’s comments about his willingness to talk to police “later” do not render his requests ambiguous. …
¶23 As Detective Salaam explained during the suppression hearing, the comments about talking “later” pertain to whether Conner reinitiated questioning. Additionally, it is clear that Conner is saying he would be willing to talk “later,” after he spoke with an attorney ….
¶24 In sum, Conner unequivocally requested counsel. After his third request for counsel, which occurred shortly before 11:30 p.m. on April 2, 2009, police should have ceased questioning. See Edwards, 451 U.S. at 484-85; see alsoState v. Jennings, 2002 WI 44, ¶26, 252 Wis. 2d 228, 647 N.W.2d 142 (“[T]he police must immediately cease questioning a suspect who clearly invokes the Miranda right to counsel at any point during custodial interrogation.”). Indeed, the record shows that police did stop questioning him, further evincing the clarity of the request. We therefore hold that the trial court erred as a matter of law in determining that Conner’s requests were ambiguous or equivocal.
Interrogations – Miranda-Edwards Rule – Reinitiation of Interrogation
Getting to an unequivocal request for counsel is only half the fun: the remaining inquiry is whether the suspect has reinitiated the interrogation. And that inquiry is tested by one of two differently-worded standards, take your pick::
¶26 The Supreme Court, in Oregon v. Bradshaw, 462 U.S. 1039 (1983), set forth two different tests for determining whether a suspect has initiated a discussion or conversation with police officers. As stated by the four-justice Bradshaw plurality, a suspect initiates communication when he or she asks questions or makes statements “that under the totality of the circumstances ‘evince a willingness and a desire for a generalized discussion about the investigation.’” See Hambly, 307 Wis. 2d 98, ¶73 (citing Bradshaw, 462 U.S. at 1045-46). As stated by the four-justice Bradshaw dissent, the suspect must instigate “‘dialogue about the subject matter of the criminal investigation.’” See Hambly, 307 Wis. 2d 98, ¶74 (citing Bradshaw, 462 U.S. at 1053 (Marshall, J., dissenting)) (emphasis omitted). Under these tests, “even suspect-initiated conversation does not constitute a priori proof of waiver” of the right to counsel. See State v. Harris, 199 Wis. 2d 227, 250‑51, 544 N.W.2d 545 (1996); see also Bradshaw, 462 U.S. at 1044 (even if the suspect initiates contact after invocation, “the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation”). “A valid waiver of an asserted right ‘cannot be established by showing only that [the suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights.’” Harris, 199 Wis. 2d at 250-51 (citation omitted; brackets in Harris). “[I]f the authorities reinitiate contact, it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the inherently compelling pressures and not the purely voluntary choice of the suspect.” Id. at 251 (citation and internal quotation marks omitted).
The court here, same as Hambly, has no need to choose between tests, because the result would be the same either way, footnote 5. Conner’s comments about needing “some time” were made after and related directly to his unequivocal request for counsel, which neither evinced willingness for generalized discussion about the investigation nor instigated dialog about the subject matter of the investigation, ¶29. State v. Hampton, 2010 WI App 169, 330 Wis. 2d 531, 793 N.W.2d 901, distinguished:
¶32 In contrast to Conner’s request for an attorney and “some time,” which both occurred before police ceased their questioning, Hampton asked for more time after the officers had honored his request for counsel. See id., ¶¶11-13 (officers begin packing up immediately upon request for attorney; thereafter Hampton requests more time). The officers in Hampton explained that they were obligated to stop questioning and had begun to pack their things before Hampton asked for more time. Id. Additionally, the substance of Hampton’s request for more time was far more indicative of “a willingness and a desire for a generalized discussion about the investigation” than Conner’s. SeeHambly, 307 Wis. 2d 98 ¶73 (citation and internal quotation marks omitted). Hampton not only requested more time, but explained that he needed thirty to forty minutes “to read the Bible, pray, and talk to God.” See Hampton, 330 Wis. 2d 531, ¶13. He also told officers that he did not want them to leave. Id., ¶¶12, 43.
¶34 … In any event, the only concrete conclusion we can draw from this evidence is that Conner “‘responded to further police-initiated custodial interrogation,’” which is not enough to establish that he reinitiated questioning. SeeHarris, 199 Wis. 2d at 251 (citation omitted).
The interrogations were recorded, but portions were inaudible, leading the court to remark, ¶34 n. 6:
… This court is in complete agreement with the trial court regarding the need for more accurate equipment, particularly in cases such as this, where a homicide was being investigated and where the State had the burden of showing that Conner waived his right to counsel. …
We also remind all trial judges who rely upon audio recordings to make their decisions that they must clearly list those portions of the recording on which they relied. Additionally, if portions of the recording transcript indicate that the recording is inaudible—as was the case here—courts must indicate whether they relied upon information gleaned from their own review of the recording that the court reporter who transcribed the recording may not have heard.