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COA holds declining to give a “statement” doesn’t invoke Miranda right not to answer “questions”

State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs)

Harrison was arrested on suspicion of some armed robberies and carjackings. While he was in custody, a detective read him the Miranda warnings. The version of the warnings printed on cards for the Milwaukee police to use apparently concludes with a question: “Realizing that you have these rights, are you now willing to answer some questions or make a statement?” (¶6). Harrison responded to this question by saying “I don’t want to make no statement right now.” Pretty clear invocation, right? Wrong, says the court of appeals.

Having been told there would be no “statement” the detective nevertheless persisted, asking if Harrison would instead answer “questions.” Harrison asked what question the detective had in mind, and the detective began interrogating him, beginning with biographical questions and eventually moving into the alleged crimes. (¶7).

Harrison eventually pleaded to some counts. Postconviction, he raised a claim that his trial lawyer was ineffective for not moving to suppress the statements on Miranda grounds. The parties and court agreed to go to the heart of question, holding a suppression hearing, since the resolution of the suppression question would go a long way toward resolving the IAC claim. (¶16). That’s where the above facts were developed. After the hearing, the circuit court denied the motion, holding there was no Miranda violation. The court of appeals affirms.

Its analysis goes off track immediately; it says the two subparts of the question on the card reflect two rights conferred by Miranda: the right to refuse to speak, and the right to cut off questioning if one initially consents but later changes one’s mind. (¶18).

That’s just not what question says. It doesn’t refer, even by implication, to beginning an interrogation and later terminating it; instead it inquires about two different modes of communication: a question-and-answer discussion or an apparently unguided statement. But even if the court of appeals were correct about the requests printed on the card, its analysis still wouldn’t make any sense: how could Harrison invoke his right not to say anything initially but also agree to continue the interrogation that had never begun?

That aside, maybe there’s an argument to be made that it’s permissible for a giver of Miranda warnings to lay out the different sorts of interaction to which a person can agree. But to invoke the right to silence, does the person then have to answer “no” to a series of questions about a whole series of possible interrogations? “Would you like to make an oral statement?” “No.” “How about a written one?” “No.” “Then do you consent to answer questions?” “No.” “How about I just ask the questions and you can decide whether to answer them?” “No.” “Would you like to compose a lyric poem about your experiences between the hours of 8 p.m. and midnight…”

“I don’t want to make no statement right now” is a pretty clear way to express one’s lack of desire to talk to the police. But, as it so often does, the court of appeals finds it “ambiguous” and thus inadequate to invoke the elusive protections of Miranda.

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