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Miranda – Waiver – Ambiguous Assertion of Right to Counsel

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Defendant’s request to call parents so they could call attorney for him was an insufficiently unequivocal assertion of his right to counsel:

¶36      We agree with the trial court’s conclusion that even if we assume that the defendant made requests to call his parents so that they could call an attorney for him, prior to when he was questioned, his vague statements were insufficient to invoke Berggren’s right to counsel. See State v. Ernst, 2005 WI 107, ¶10, 283 Wis. 2d 300, 699 N.W.2d 92 (noting that even though our review is de novo, we benefit from trial court’s analysis). The trial court specifically concluded:

The evidence clearly demonstrates that Todd Berggren wanted to talk to the detective. If he truly did not want to make a statement without an attorney present, he would not have signed the waiver form and agreed to make a statement on multiple occasions. Berggren, as a police officer himself, knew what he had to do to invoke his right to an[] attorney. In fact, he did precisely this at the end of the 5th interview segment.

We conclude, as the trial court did, that any statements prior to that time were not unequivocal requests for counsel, particularly when they were immediately followed by Berggren signing another waiver of rights form and agreeing to talk. As such, there would have been no constitutional barrier to the admission of Berggren’s statements.

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