Miranda violation — interrogation by police
After a lawful arrest, but before being given Miranda warnings, Douglas initiated a conversation with the arresting officer in which he stated he wanted “to work” for the police by offering information about some marijuana dealers. After the officer declined that offer there was a “pause,” followed by Douglas changing the subject and volunteering information about a gun; that information was used to support a search warrant. (¶¶3, 8). Because Douglas volunteered the information and was not responding to the officer’s questions, the trial court properly concluded that Douglas’s comments about the gun were not in response to interrogation or its functional equivalent:
¶16 First, other than following up on Douglas’s question concerning his possible help in getting marijuana dealers, the only questions Officer Robinson asked were routine booking questions, and those questions may be asked irrespective of whether the officer gives Miranda warnings to the person in custody from whom the booking information is sought, or whether the person has invoked his or her right to silence or to have the help of a lawyer. State v. Bryant, 2001 WI App 41, ¶¶14–15, 241 Wis. 2d 554, 563–564, 624 N.W.2d 865, 869–870.
¶17 Second, Miranda does not require suppression of voluntary statements made by a person in custody unless, as we have seen, those statements are elicited by the functional equivalent of interrogation. Miranda, 384 U.S. at 478 (“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.”); Innis, 446 U.S. at 300–301. Significantly, as the trial court recognized, the only question that Robinson asked Douglas was in response to Douglas’s offer to help get marijuana dealers, and that question had nothing to do with guns. Thus, assuming without deciding that any further responses by Douglas in connection with the dealing of marijuana would have to be suppressed if offered at any trial on a marijuana charge to prove, for example, “knowledge,” see Wis. Stat. Rule 904.04(2), Douglas’s change-of-subject offer to get a gun for Robinson was volunteered after what the trial court found was a “pause” and while Robinson was continuing to fill out the required paperwork. …
¶19 In sum, on our de novo review, we agree with the trial court that Douglas’s get-the-gun offer was freely volunteered and was not the result of either Miranda interrogation or its functional equivalent.
The court distinguishes State v. Martin, 2012 WI 96, ¶¶36-41, 343 Wis. 2d 278, 816 N.W.2d 270, on which Douglas relies, because in that case the officer’s statements to the defendant were clearly the functional equivalent of interrogation. (¶18).
Sentencing — erroneous exercise of discretion
The circuit court did not erroneously exercise its discretion in imposing consecutive sentences for the three crimes Douglas was convicted of:
¶21 Douglas … faults the trial court for not … giving “any rational and explainable basis for the consecutive sentences imposed for weapons-based crimes, instead focusing on the defendant’s history with marijuana and his need for treatment.” But that is not an accurate representation of the trial court’s expressed rationale; it specifically noted that Douglas deliberately had a gun even though he “clearly had to have known that [he] can’t have a firearm based on [his] prior cases” and a letter that he got from Illinois telling him that he could not possess any weapons. The weapon matters were all part of what the trial court noted was Douglas’s continuing criminality, a criminality that had to be stopped by a significant period of incarceration followed by in-community supervision. …. While the trial court did not specifically assess each crime to which Douglas pled guilty as if it were the only crime to be considered at sentencing, its sentencing analysis fully considered the appropriate sentencing factors for all of Douglas’s admitted crimes. It also gave Douglas a significant break by not only not following the State’s sentencing recommendation, but also by permitting the State to dismiss the five felony bail-jumping charges and the two other marijuana cases. See State v. Conger, 2010 WI 56, ¶24, 325 Wis. 2d 664, 684–686, 797 N.W.2d 341, 351–352. (“[W]hether to reject a plea agreement is squarely within the court’s authority.”); State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 160, 164 (1978) (“Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss ‘in the public interest.’”). Douglas’s appellate complaint that the trial court erroneously exercised is discretion is without merit.