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SCOW: “Take me to my cell” or “I don’t want to talk about this” won’t end interrogations

State v. Carlos Cummings and State v. Adrean L. Smith, 2014 WI 88, 7/24/14, affirming per curiam court of appeals decisions in 2011AP1653-CR & 2012AP520-CR, majority opinion by Justice Ziegler; concurrence/dissent by Justice Prosser (joined by Justice Bradley); dissent by Chief Justice Abrahamson; case activity for Cummings and Smith

These cases address whether two Mirandized suspects unequivocally invoked their respective rights to remain silent, or cut off questioning, during police interrogations.  Citing State v. Markwardt, 2007 WI App 242 the majority held that both defendants seem to have meant something other than what they literally said.  Their attempts to cut off questioning were “equivocal” and thus their statements need not be suppressed.

Both Cummings and Smith were in the middle police interrogations when they tried to cut off questioning.  Here are the condensed versions of their attempts:

Cummings (after the officer refused to answer a question):  “Well, then, take me to my cell.  Why waste your time?  Ya know? . . . If you got enough to fuckin’ charge me, well then, do it and I will say what I have to say, to whomever, when I plead innocent.  And if they believe me, I get to go home, and if they don’t . . . I get locked up.”

Smith (after being peppered with questions about robberies): “I don’t know nothing.  See, look, I’m talking about this van.  I don’t know nothing about no robbery Or no – what’s the other thing? . . . I don’t want to talk . . . I don’t know nothing about this, see.  That’s — I’m talking about this uh van.  This stolen van. I don’t know nothing about this stuff.  So, I don’t even want to talk about this.”

The majority opinion declared both statements ambiguous or equivocal, which means the police could keep questioning the suspects.  According to the majority, Cummings’ declarations could be read “literally” to mean that he wanted to be taken to his cell.  But he may have used a “rhetorical device intended to elicit additional information from the officers about the statements of his co-conspirators.”  Further, because Cummings made these statements during a “verbal back and forth” with officers, they are subject to “reasonable competing inferences.” Slip op. ¶54, ¶59.  And that means no suppression.

As for Smith, the majority held that his statements standing alone looked like an unequivocal effort to cut off questioning. Slip op.  ¶61.  Unfortunately he attempted to cut off questioning only 4 times, whereas he proclaimed his innocence 7 times.  The majority reasoned: “Such a proclamation of innocence is incompatible with a desire to cut off questioning.” Id. ¶64.  The fact that his statements could be interpreted as either proclamations of innocence or selective refusals to answer questions meant that they, too, were “subject to reasonable competing inferences” and thus should not be suppressed.

Seems like asking or answering any question in police custody could be construed as a “verbal back and forth.”  (E.g. Detective: “Do you want a drink of water?” Suspect: “No.”) After that, anything you say could be susceptible to more than one interpretation.  Next thing you know, “I want to talk to my lawyer” will be interpreted as “a proclamation of innocence,” which, according to the majority, means you actually want to be interrogated more. For the record, the majority didn’t cite any legal authority for the idea that proclaiming your innocence is incompatible with a desire to cut off questioning.

Justice Prosser (joined by Bradley) agreed with the majority on Cummings but dissented on Smith.  His beef with the majority opinion is that when Smith said “I don’t want to talk about this,” the detective responded “I got a right to ask you about it.”   Not so, said Prosser. Under Berghuis v. Thompkins, 560 U.S. 370 (2010), once Cummings said “I don’t want to talk about this” he unambiguously invoked his right to remain silent.  See State v. Goetsch, 186 Wis. 2d 1, 7, 519 N.W.2d 634 (Ct. App. 1994)(where the defendant used virtually the same words.)

Justice Abrahamson dissented on both Cummings and Smith because the “unequivocal invocation” test is objective.  Courts should not try to determine the suspect’s subjective intent.  She noted that even the State requested clarification on this point, which the majority refused to give.  Dissent at ¶96.  The Eastern District of Wisconsin recently tossed a Wisconsin court of appeals decision, which held that while the defendant’s words were clear, he did not really mean them.  Saeger v. Avila, 930 F. Supp.2d 1009 (E.D. Wis. 2103). Click here.  “If this reasoning were accepted, then it is difficult to imagine a situation where a suspect could meaningfully invoke the right to  remain silent no matter what words he used.” Dissent at ¶98 (quoting Saeger).  Exactly so.

Cummings also challenged his sentence as unduly harsh due to an erroneous exercise of discretion. The majority dismissed the point because the circuit court properly recited the Gallion test and then displayed an appropriate exercise of discretion by saying that in this case a sentence near the maximum was necessary “or it would unduly deprecate the seriousness of the offense, and there was a real need to protect the public.”

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