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Statements – Voluntariness – Coercion – “Confrontational,” Loud Interrogation: Insufficient

State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn

Issue/Holding: Markwardt’s in-custody statement was voluntary: any stress she was under was “unrelated to police conduct” (¶37); she didn’t unequivocally assert her rights (¶40); that the interrogator “was at times confrontational and raised his voice is not improper police procedure and does not, by itself, establish police coercion” (¶42, citing State v. Owen, 202 Wis. 2d 620, 642, 551 N.W.2d 50 (Ct. App. 1996)); “although Markwardt was questioned for two hours, the questioning was not continuous but was punctuated by two breaks …. neither Markwardt’s length of custody nor her interrogation qualifies as coercive police conduct” (¶44-46); her handcuffs were removed an hour before the interrogation (¶¶47-48):

¶49   In short, none of the police conduct, when considered independently, or when considered as a whole, rises to the level of coercive misconduct. …

¶50   As such, it is improper to consider Markwardt’s personal characteristics because consideration of Markwardt’s personal characteristics is triggered only if there exists coercive police conduct against which to balance them. See State v. Clappes, 136 Wis. 2d 222, 239, 401 N.W.2d 759 (1987) (A defendant’s personal characteristics “only become determinative in the voluntariness analysis when there is something against which to balance them.”). Here, we do not reach the balancing test because there is no coercive police conduct against which to balance Markwardt’s personal characteristics.

Not raised by the facts of this case, but well worth keeping in mind is the distinction between voluntary and knowing-intelligent waiver, as recently discussed by Garner v. Mitchell, 6th Cir No. 02-3552, 9/11/07, fn. 5:

In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court held “that coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary,’” but did not suggest that coercive police activity is a necessary predicate to a conclusion that a waiver of Miranda rights was not knowing or intelligent. Id. at 167; see also United States v. Turner, 157 F.3d 552, 555 (8th Cir. 1998); Miller v. Dugger, 838 F.2d 1530, 1539 (11th Cir.) (“We do not read the Connelly decision as demonstrating an intent to eliminate this distinction between voluntariness and knowing waivers.”), cert. denied, 486 U.S. 1061 (1988). Indeed, the ConnellyCourt noted that an expert witness “testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when [the police] advised him that he need not speak.” Connelly, 479 U.S. at 161-62.

We recognize that the Supreme Court’s requirement that a Miranda waiver be made knowingly and intelligently may, on occasion, put the police in the difficult position of having to assess a suspect’s understanding and intellectual capacities at the time of interrogation. This difficulty is not wholly unique, however, as courts face similar difficulties, for example, when assessing a defendant’s competency and understanding during a plea colloquy or when a defendant waives the right to counsel. Suspicions that a suspect’s initial Miranda waiver was not made knowingly and intelligently also do not preclude the police from interrogating the suspect later under different circumstances—for example, following evaluation by a mental-health professional, following treatment, or in the presence of a lawyer, see, e.g.In re B.M.B., 955 P.2d 1302, 1309-13 (Kan. 1998); cf. infra note 10—if the police desire greater assurances that the suspect’s statement will be deemed admissible at trial.

To suggest as the dissent does, however, that the validity of a Miranda waiver depends only on the objective conduct of the police is to read the requirement that a valid waiver be “a knowing and intelligent relinquishment or abandonment of a known right or privilege,” Edwards, 451 U.S. at 482, out of the Supreme Court’s Mirandajurisprudence. Under the dissent’s formulation, even a suspect who did not hear hisMiranda rights being read somehow could give a knowing and intelligent waiver, so long as the police had no reason to believe that the suspect did not hear.


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