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Interrogation Request for Counsel – Re-Initiation by Suspect; Assertion-Waiver, Right to Silence

State v. Robert Allen, Jr., 2009AP2596-CR , District 1, 9/14/10

court of appeals decision (3-judge, not recommended for publication); for Allen: Bradley J. Lochowicz; BiC; Resp.; Reply

Interrogation Request for Counsel – Re-Initiation by Suspect

Allen’s invocation of right to counsel terminated his interrogation, but he immediately re-initiated communication with the police by asking “what’s going on”:

¶15      “Even after a suspect in custody asks to speak with a lawyer, thereby requiring that all interrogation must cease until a lawyer is present, a suspect may waive his or her Fifth Amendment Miranda right to counsel.” State v. Hambly, 2008 WI 10, ¶67, 307 Wis. 2d 98, 745 N.W.2d 48 (citing Edwards v. Arizona, 451U.S. 477, 485 (1981); internal quotation marks and one citation omitted). To prove that a suspect waived the Miranda right to counsel, the State must demonstrate:  (1) “as a preliminary matter that the suspect ‘initiate[d] further communication, exchanges, or conversations with the police,’” Hambly, 307 Wis. 2d 98, ¶69 (quoting Edwards, 451 U.S. at 485; brackets in Hambly), and (2) that the suspect waived his or her Miranda rights voluntarily, knowingly and intelligently, see id., ¶70.

¶19      Despite Allen’s representations to the contrary, the context of his statement “to know what’s going on” shows that after initially invoking his right to an attorney, Allen initiated further discussion about the homicide investigation. Allen’s request referred to the homicide investigation—it evinced a willingness and desire for generalized discussion about the investigation. Cf. Hambly, 307 Wis. 2d 98, ¶82 (concluding that the context of the suspect’s statement that he did not understand why he was under arrest “evinced a willingness and a desire for a generalized discussion about the investigation”). His inquiry was not “so routine that [it] cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.” See Bradshaw, 462 U.S. at 1045 (“There are some inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.”).

Allen was interviewed multiple times after re-initiating contact; given that he demonstrably knew how to assert his rights, the court has no difficulty concluding that his subsequent waivers were voluntary, ¶¶20-23.

Assertion-Waiver, Right to Silence

Allen’s termination of each of the subsequent interviews didn’t work an absolute bar on further interrogation:

¶25      The propriety of resuming questioning once the right to counsel or silence has been invoked is governed by Michigan v. Mosley, 423 U.S. 96 (1975). See State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866 (1985). The Hartwig court acknowledged that in Mosley, the United States Supreme Court focused on the following factors in concluding that the interrogation of a defendant was properly resumed and the defendant’s right to silence was not violated:

(1) The original interrogation was promptly terminated. (2) The interrogation was resumed only after the passage of a significant period of time. (In Mosley it was two hours). (3) The suspect was given complete Miranda warnings at  the outset of the second interrogation. (4) A different officer resumed the questioning. (5) The second interrogation was limited to a crime that was not the subject of the earlier interrogation.

Hartwig, 123 Wis. 2d at 284. The Hartwig court recognized, however, that the absence or presence of the Mosley factors was “not exclusively controlling” and did not establish a test that could be “woodenly applied.” Hartwig, 123 Wis. 2d at 284-85 (citation and internal quotations omitted). “The essential issue is whether, under the circumstances, the defendant’s right to silence was scrupulously honored.” Id. at 285.

¶26      Thus, police are not permanently barred from interrogating a suspect who has invoked the right to silence. After Allen invoked his right to silence at the end of each interview leading up to the ultimate interview with Detectives Peterson and Ball, police scrupulously honored those invocations. The interrogations resumed only after the passage of a significant period of time.[7] See id. at 285-86 (“What constitutes a ‘significant’ period must be interpreted in light of the circumstances of the case and in light of the goals to dispel the compulsion inherent in custodial surroundings and to assure the defendant that his right to silence will be scrupulously honored.”). Aside from the aborted interview with Detective Peterson, Allen was advised of his Miranda rights at the outset of each interview. Furthermore, with the exception of the ultimate interview, three different detectives (Detectives Ball, Peterson, and Applegate) interviewed Allen. See State v. Turner, 136 Wis.2d 333, 359, 401 N.W.2d 827 (1987) (establishing that re-interrogation by the same officer for the same crime does not by itself run afoul of Mosley). After considering the Hartwig factors, we conclude that the subsequent interviews did not violate Allen’s right to silence.[8]

Minor quibbles: The Mosley-Hartwig “scrupulously honored” test relates to invocation of right to silence, not counsel. And, the court cites with approval [footnote 8] the holding in State v. Shaffer, 96 Wis. 2d 531, 539, 292 N.W.2d 370 (Ct. App. 1980) that a nine-minute interval between invocation of silence and resumption of questioning did not violate Mosley. The quibble here is that the holding was overturned on habeas review, Shaffer v. Clusen, 518 F. Supp. 963 (ED Wis 1981). The state court, it is true, isn’t bound by a federal court ruling, but some mention ought to have been made of the subsequent history; besides which, there are good reasons to doubt the state-court result in Shaffer, with or without the habeas grant. In any event, Shaffer isn’t terribly relevant to the present case, which is why the quibble is minor and further discussion of the case unnecessary.

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