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Waiver/Assertion of Rights – Anticipatory (Pre-Custodial) Assertion of Right to Counsel

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue: Whether pre-custodial assertion (during standoff with police) of right to counsel barred interrogation following subsequent arrest.


¶13      Hassel is dispositive here. … Observing that Miranda safeguards apply only to custodial interrogations and that Hassel did not argue he was in custody when he invoked his right to silence, we concluded Hassel “was not entitled to invoke Miranda” during the pre-custodial interview with police. Id., ¶¶9-10.

¶14      Applying the general rule in Hassel to this case, we conclude Kramer’s pre-custody invocation of his right to counsel was not an invocation of his right to counsel under Miranda and therefore his ensuing post-Mirandized inculpatory statements made while undergoing custodial interrogation need not be suppressed. As in Hassel, Kramer does not dispute the State’s assertion that he was not in custody when he asked the police to get him a lawyer. Arguments not refuted are generally deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis.  2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Moreover, Kramer does not suggest, and we cannot think of, any reason not to apply Hassel here. Instead, Kramer asserts, relying on Smith v. Illinois, 469 U.S. 91 (1984), that he could have anticipatorily invoked his right to counsel at anytime during the “process.” Kramer’s reliance on Smith is misplaced, as that case does not address the non-custodial anticipatory invocation of a Miranda right.

¶15      Our holding here, however, is not meant to suggest that there are no exceptions to the general rule that a defendant may not anticipatorily invoke Miranda. For example, there might be situations where a request for counsel at the conclusion of a standoff situation is so intertwined with imminent interrogation that the invocation should be honored. That did not occur here.

Was Kramer in custody during the standoff? After all, he had just killed a deputy, was surrounded by 100 officers, and he was not going to walk away no matter what. If custody requires no more than that a reasonable person would see his or her liberty as significantly restricted then maybe an argument could be made that Kramer was in custody. But Miranda requires something a bit more—custody tantamount to formal arrest, and because Kramer hadn’t actually submitted to the authority of the police then no, he couldn’t really be said to be in custody. Not that it matters to any legal analysis, but why didn’t they go ahead and get him a lawyer? For an interesting variation on this theme, see In re Pautler, 47 P.3d 1175 (Colo. 2002) (during standoff with suspect, prosecutor misrepresented himself as public defender and induced suspect to surrender; the prosecutor, who was found to have violated the ethical proscription against dishonesty, told the disciplinary board that “he believed any defense lawyer would advise Neal not to talk with law enforcement [and] also testified that he did not trust anyone at the PD’s office”—on second thought, maybe the local authorities had their reasons for thinking no good would come of acceding to Kramer’s request; much better to risk grave injury than to risk not getting a confession.

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