State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
¶38 The parties have not provided, and we have not discovered, any case that addresses the burden of proof in a factual context similar to this—where the defendant asserts he previously invoked his right to counsel as a basis for invalidating a later waiver.  However, we are persuaded that placing the burden on the State to show a prior waiver of this right, where the defendant has timely raised the issue, is more consistent with the principles established in existing case law. …
¶39 We emphasize that, in order for the State to have the burden of proof—both the burden of going forward with a prima facie case and the burden of persuasion—that the accused previously waived his or her Fifth Amendment/ Miranda right to counsel, the defendant must timely put the State on notice that he or she is claiming he or she did not waive this right. See Santiago, 206 Wis. 2d at 20-21, 25-26 (State need not in every case present the foreign language Miranda warnings and their translation in order to make a prima facie case of a valid waiver; but it must do so when the defendant puts the State on timely notice—either in the motion to suppress or during the State’s initial presentation of evidence—that he or she is claiming the foreign language warnings were inadequate). Here, Cole’s motion to suppress put the State on timely notice that he was claiming his statement to Officer Riley was inadmissible because he had previously invoked his Fifth Aamendment/ Miranda right to counsel when interviewed by Officer Gonzales on the battery charge.
¶40 Because we conclude the State had the burden of proof—both the burden of producing evidence to establish a prima facie case and the burden of persuasion—that Cole previously waived his Fifth Amendment/ Miranda right to counsel, we agree with Cole that the court erroneously placed the burden on him to prove he had invoked that right.
Remedy for this misallocated burden of proof is remand for correct determination by the circuit court, ¶¶41-44. Note that the court assumes that, so long as the suspect remains in continuous custody, the Edwards rule remains in force, ¶¶26-28. Cole asserted his right to counsel about two months earlier, after arrest on a different offense, and hadn’t been released; the court doesn’t reject (indeed, doesn’t really address) the question of whether the passage of time might vitiate Edwards. That assumption may very well turn out to be correct, but the cautious practitioner will at least want to be aware of, and keep an eye on, Maryland v. Shatzer, USSC No. 08-680, cert granted 1/26/09, which raises this very question.