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Resuming questioning of suspect didn’t violate his invocation of right to remain silent

State v. Johnnie Mertice Wesley, 2015AP590-CR, District 1, 7/6/16 (not recommended for publication); case activity (including briefs)

Wesley asserted his right to remain silent during an initial interrogation, and the detectives stopped questioning him. Detectives approached him two more times to resume questioning, and during the third interrogation Wesley made incriminating statements. The court of appeals holds that the detectives didn’t violate Wesley’s invocation of the right to remain silent by resuming interrogation. The court also rejects Wesley’s claim that he invoked the right to remain silent again during the third interrogation.

Wesley was arrested in connection with the shooting of Bruce Lloyd and was interrogated three separate times. The first interrogation was terminated before the Miranda warning was given because Wesley told detectives he wasn’t going to make a statement and didn’t want to talk to them. (¶¶3-4). The next day detectives approached Wesley a second time, but Wesley again said he didn’t want to answer questions. (¶5). The day after that, detectives started up again. During and after the Miranda warnings, Wesley made the statements he argues invoked his right to silence, but instead of terminating the questioning the detectives persisted. (¶¶6-9).

Wesley first argues that by initiating the second and third interrogations the detectives didn’t “scrupulously honor” his invocation of the right to remain silent during the first interrogation. Whether the invocation was “scrupulously honored” is assessed with the factors from Michigan v. Mosley, 423 U.S. 96, 104-07 (1975), and State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866 (1985), and the factors don’t forever bar the police from resuming questioning, State v. Badker, 2001 WI App 27, ¶12, 240 Wis. 2d 460, 623 N.W.2d 142. Only one of the Mosley factors—that the subsequent interrogations related to a different crime—weighs in Wesley’s favor; the rest support the conclusion that his invocation was scrupulously honored:

¶18     …. First, police terminated the first interrogation promptly after Wesley indicated he did not want to listen to his Miranda rights or talk about the homicide.

¶19     Second, police resumed questioning after a significant period of time. Officers attempted the second interrogation, which ultimately did not occur, approximately nine-and-a-half hours after the first interrogation concluded. Furthermore, the third interrogation did not begin until approximately twenty-seven hours after the first interrogation concluded. The period of time between interrogations in Mosley was two hours. See id., 423 U.S. at 104. Furthermore, the Wisconsin Supreme Court has upheld intervening time periods which were significantly shorter. See State v. Shaffer, 96 Wis. 2d 531, 541, 292 N.W.2d 370 (1980) (nine-minute interval between invocation of right to silence and resumption of questioning comports with Mosley).

¶20     Third, [Detective] Dalland gave Wesley complete Miranda warnings at the outset of the third interrogation. While Miranda warnings were not provided at the outset of the second interrogation, this issue is moot since the second interrogation never actually occurred.

¶21      Finally, a different officer, Dalland, resumed questioning for the third interrogation. Although Dalland was present during the first interrogation, our review of the video recording confirms that he asked no questions and only observed the interaction between Wesley and Spano. Wesley argues that the State points to no case law supporting the proposition that Dalland’s presence at the first interrogation does not count because he did not ask any questions. Mosley, however, requires only that a different officer resume questioning; it does not say that the officer resuming questioning could not have been present during the first interrogation. See Hartwig, 123 Wis. 2d at 284.

Wesley also argues that three statements he made during the third interrogation unequivocally re-invoked his right to remain silent. Whether a suspect has unequivocally invoked the right to silence turns on the person’s statements “[i]n the full context of [the] interrogation,” State v. Cummings, 2014 WI 88, ¶61, 357 Wis. 2d 1, 850 N.W.2d 915. If the suspect’s statement is susceptible to reasonable competing inferences as to its meaning, then the individual did not sufficiently invoke his right to remain silent, State v. Markwardt, 2007 WI App 242, ¶36, 306 Wis. 2d 420, 742 N.W.2d 546. The court of appeals holds that, considered in context, the Wesley’s statements didn’t unequivocally invoke his right to silence:

  • The first statement—”Ain’t nothing to talk about doe”—came after the interrogator told Wesley he needed to read the Miranda warnings. Wesley followed it up by saying they were questioning him about something he didn’t know about and didn’t do. “Viewing this statement in the full context of the interrogation, we conclude that a reasonable inference would be that Wesley was merely making exculpatory statements—that he did not kill Lloyd.” (¶¶27-28).
  • The second statement came after the Miranda warnings, when the detective asked if he could question Wesley, who responded: “You can say what you want but it just, I ain’t got shit to say about no homicide. I don’t kill people. I never attempted to kill nobody I never … I don’t do that. I’m not that type of person. …” (¶29). Once again, the court concludes, “a reasonable inference would be that Wesley was merely making exculpatory statements” (¶30), not invoking his right to silence.
  • The third statement came after some “verbal sparring” about what the police knew about the crime, Wesley’s reassertion that he didn’t know anything or have any involvement, and then a brief silence, after which Wesley said “Can I go back to my cell now?” (¶31). The court concludes that like the defendant’s statement in Cummings, 357 Wis. 2d 1, ¶¶53-54, this is equivocal: “Wesley repeatedly engaged in a back-and-forth with the detectives to find out how much they knew. Viewing this statement in the full context of the interrogation, therefore, we conclude that this statement is susceptible to reasonable competing inferences as to its meaning.” (¶¶32-33).
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