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Defendant didn’t invoke right to counsel, and his statement wasn’t coerced

State v. Christopher E. Masarik, 2015AP194-CR, District 1, 10/4/16 (not recommended for publication); case activity (including briefs)

Masarik didn’t unequivocally assert his right to have counsel present while he was being questioned about an arson that resulted in the death of another, and his statement wasn’t involuntary despite his mental health difficulties.

About two hours into his interrogation, Masarik said “I think I need an attorney, man,” “I mean[,] I want to talk to you but I want an attorney present,” and “I just need a minute, I need to think.” The detectives stopped the questioning and left Masarik alone in the interview room. They returned about 15 minutes later, and Masarik then said he wanted to tell his side of the story. He was given Miranda warnings again, and confirmed his wish to continue to talk to police. He later gave incriminating statements. (¶5). The court of appeals holds Masarik didn’t unequivocally invoke his right to counsel, relying on State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142 (“I think maybe I need to talk to a lawyer” wasn’t an unequivocal assertion of right to counsel).

¶8      …Masarik’s statements are not an unequivocal invocation of his right to counsel, both because he said “I think I need an attorney” and because he asked the detectives for time to think. See Jennings, 252 Wis. 2d 228, ¶¶29, 44. The former statement is certainly equivocal and the latter plainly asks to be left alone to think—a request that the detectives respected. ….

Wait, what about that unequivocal middle statement—”I want to talk to you but I want an attorney present“? The court doesn’t mention it, maybe because it can’t quite bring itself to admit that statement is unequivocal; instead, it avoids the matter by saying “even if we did consider this an unequivocal invocation, we would still conclude that there was nothing unlawful: the trial court found that Masarik started talking about the case again when the detectives returned to the room, and the recording showed that Masarik was then re-Mirandized [sic] as required before questioning resumed.” (¶8). Problem solved!—because if a suspect does manage to indicate he wants an attorney, his statement is still admissible if he then initiates further discussions with the police and knowingly and intelligently waives the right he had invoked. State v. Conner, 2012 WI App 105, ¶16, 344 Wis. 2d 233, 821 N.W.2d 267.

Masarik also argues his trial lawyer should have argued his statements were involuntary because, he claimed, the police promised less serious charges if he cooperated and because his poor mental health made him vulnerable to coercive tactics by the police. (¶¶6, 26). This argument goes nowhere, first because the police testified they made no promises, and the trial judge found them more credible; second, because Masarik provided no proof (and none was evident from the recording of the interrogation) that he was having mental health difficulties during the time he was being interrogated; and third, because there was no evidence of any coercive police tactics. (¶¶7, 9, 20-29).

A claim that trial counsel was ineffective for failing to challenge the legality of his arrest also fails because there was ample probable cause to arrest. (¶¶13-16).

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