State v. Jesse J. Delebreau , 362 Wis. 2d 542 ( 2015 )

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1108-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Jesse J. Delebreau,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 352 Wis. 2d 647, 843 N.W.2d 441
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 21
OPINION FILED: June 16, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 5, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: Thomas J. Walsh
JUSTICES:
CONCURRED: ROGGENSACK, C.J., concurs. (Opinion Filed.)
DISSENTED: ABRAHAMSON, BRADLEY, JJ. dissent. (Opinion
Filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Stephen P. Hurley, Marcus J. Berghahn, and Hurley, Burish &
Stanton, S.C., Madison, and oral argument by Stephen P. Hurley.
For the plaintiff-respondent, the cause was argued by Jacob
J. Wittwer, assistant attorney general, with whom on the briefs
was J.B. Van Hollen, attorney general.
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1108-CR
(L.C. No. 2011CF453)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 16, 2015
Jesse J. Delebreau,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of a published
decision of the court of appeals, affirming a judgment of
conviction in the Brown County Circuit Court, Mark A. Warpinski,
Judge.1 The case presents questions related to the right to
counsel for defendants who have been charged with a crime.
¶2 Jesse J. Delebreau (Delebreau) was convicted of one
count of delivering heroin (less than three grams), second or
1
State v. Delebreau, 2014 WI App 21, 352 Wis. 2d 647, 843
N.W.2d 441.
No. 2013AP1108-CR
subsequent offense, as a repeater and as party to a crime.2 The
circuit court entered a judgment of conviction following a jury
trial in which the State utilized statements Delebreau made to
investigators while he was incarcerated at the Brown County
Jail. These statements were made after the charge against
Delebreau had been filed and after Delebreau had appeared in
court with appointed counsel.
¶3 The focus of Delebreau's appeal is that the statements
he made to police after his initial appearance should have been
suppressed in accord with State v. Dagnall, 2000 WI 82, 236
Wis. 2d 339, 612 N.W.2d 680. In Dagnall, this court observed
that the Sixth Amendment right to counsel attaches when criminal
charges are filed. Id., ¶52. It then stated that, "[a]fter an
attorney represents the defendant on particular charges, the
accused may not be questioned about the crimes charged in the
absence of an attorney." Id., ¶53.
¶4 Since Dagnall, however, the legal landscape has
changed. In 2009 the United States Supreme Court issued its
decision in Montejo v. Louisiana, 556 U.S. 778 (2009), holding
that a defendant's waiver of his or her Miranda3 rights is
sufficient to waive the Sixth Amendment right to counsel, even
though Miranda rights are grounded in the Fifth Amendment. Id.
2
Contrary to Wis. Stat. §§ 961.41(1)(d)1, 961.48(1)(b),
939.62(1)(b), and 939.05. All subsequent references to the
Wisconsin Statutes are to the 2011-12 version unless otherwise
indicated.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
2
No. 2013AP1108-CR
at 786-87. The Court further held that a defendant's waiver
need not be presumed invalid simply because the defendant is
represented by counsel. Id. at 789. The Court's holding
overruled Michigan v. Jackson, 475 U.S. 625 (1986)——on which
Dagnall heavily relied——and seriously undercut our holding in
Dagnall.
¶5 Following Montejo, we addressed the new legal
landscape in State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796
N.W.2d 741. However, our decision in Forbush featured such a
marked lack of consensus among the justices that it left
Wisconsin law somewhat unclear. Hence, we take this opportunity
to clarify the law on waiver of the right to counsel after a
defendant has been charged with a crime.
¶6 First, we reaffirm the position of a majority of
justices in Forbush that Montejo effectively overruled Dagnall
by establishing that a waiver of Miranda rights is sufficient to
waive the Sixth Amendment right to counsel and that such a
waiver is not presumed invalid simply because the defendant is
already represented by counsel. Second, we hold that that
Article I, Section 7 of the Wisconsin Constitution does not
provide greater protections than the Sixth Amendment of the
United States Constitution in the context of a waiver of the
right to have counsel present during questioning. Accordingly,
we affirm the decision of the court of appeals.
I. FACTUAL AND PROCEDURAL HISTORY
¶7 The relevant facts are undisputed. This case stems
from the Brown County Drug Task Force's (the Task Force) use of
3
No. 2013AP1108-CR
a confidential informant to arrange for the purchase of drugs.
In exchange for not being charged with possession of drug
paraphernalia, B.J. (the informant) agreed to act as a
confidential informant for the Task Force. On February 21,
2011, the informant arranged a meeting with Christopher Woodliff
(Woodliff) to buy crack cocaine and heroin. The informant knew
Woodliff through prior drug deals between the two. The Task
Force outfitted the informant with a surveillance wire and gave
him $200 to purchase drugs from Woodliff.
¶8 Once inside Woodliff's home, the informant saw
Woodliff, two other men, and a woman. The informant had not met
Delebreau before, but he identified him at trial as one of the
other men he saw inside Woodliff's home. The informant asked
Woodliff for two bags of crack cocaine and two bags of heroin.
He gave Woodliff the $200 provided by the Task Force. Woodliff
returned $80, then asked Delebreau if he had "any bindles left."
Delebreau replied that he did, and the informant gave him the
remaining $80.
¶9 After the exchange of money, Woodliff and Delebreau
left the room. When they returned, Delebreau handed the
informant two baggies of what the informant believed to be
heroin. Woodliff provided the informant with the crack cocaine.
The informant stayed inside Woodliff's home for about 45
minutes.
¶10 Once he left Woodliff's home, the informant met with
one of the investigators from the Task Force and turned over the
recording equipment along with the four baggies of drugs. The
4
No. 2013AP1108-CR
two baggies of heroin were later weighed at the State Crime
Laboratory and found to have a combined weight of 0.013 grams.
¶11 Delebreau was taken into custody on March 31 on a
probation hold. He was held at the Brown County Jail. Sometime
between April 7 and April 9, Delebreau sent a note to jail
officials requesting to speak with a narcotics investigator in
the Task Force about his involvement.
¶12 On April 14, Delebreau was charged with the delivery
of heroin stemming from the February 21 transaction. That same
day, Delebreau made his initial appearance in court4 where he was
represented by Attorney William M. Fitzgerald, a public
defender.5
¶13 The next day, April 15, Delebreau met with
investigator Roman Aronstein from the Task Force at the jail.
Aronstein later testified that he was the person who previously
referred charges related to Delebreau's involvement in the
February 21 incident to the District Attorney's office but that
he was unaware of the status of those charges. Aronstein also
testified that at the time of the meeting he believed that
Delebreau was at the jail on a probation hold. Aronstein did
not check with the District Attorney's office about his criminal
referral and he did not ask Delebreau whether he had actually
4
Court Commissioner Lawrence L. Gazeley presided.
5
Shortly after Delebreau's initial appearance, it was found
that Fitzgerald had a conflict of interest because he
represented a co-defendant. A new attorney was appointed to
represent Delebreau.
5
No. 2013AP1108-CR
been charged. Before beginning the interview, Aronstein
activated the audio/video equipment at the jail and read
Delebreau his Miranda rights. Delebreau waived his rights and
did not ask for counsel. In this interview, Delebreau admitted
to having sold drugs.6 However, Delebreau could not remember
anything about the February incident even after being shown
video of the transaction.
¶14 Aronstein returned three days later (April 18) to
interview Delebreau a second time. Again, Aronstein did not
check whether charges had been filed against Delebreau or
whether he had counsel. Before the interview took place,
Aronstein turned on the audio/video equipment and read Delebreau
his Miranda rights. Aronstein testified that Delebreau stated
during the interview that "he wasn't going to be able to beat
these charges" and that "he was going to end up going to prison
anyway so he might as well just cooperate with law enforcement."
Aronstein testified that he believed from this exchange that
Delebreau had no intention of meeting with an attorney.
Aronstein had prepared a statement for Delebreau, which
Delebreau signed. The statement acknowledged that Delebreau was
the person in the video and based on the transaction shown, he
must have been the one who sold heroin to the informant.
However, Delebreau claimed he had no memory of the incident.
6
Aronstein started the meeting by introducing himself and
Delebreau immediately said "he wished to resolve the matter at
hand and [knew] that he [was] guilty of something."
6
No. 2013AP1108-CR
¶15 The two interviews were used as evidence in
Delebreau's trial. Before the trial, Brown County Circuit Judge
Mark A. Warpinski denied Delebreau's motion to suppress the
statements he made in the interviews. The court of appeals
denied Delebreau's petition for leave to appeal the order
denying the suppression motion because Delebreau failed to meet
the criteria for an interlocutory appeal.
¶16 At trial, a jury found Delebreau guilty of delivery of
heroin, and the court sentenced him to eight years of
imprisonment consisting of four years of initial confinement and
four years of extended supervision. The court of appeals
affirmed Delebreau's conviction and the denial of his
suppression motion, determining that Montejo controlled and that
Delebreau's Miranda waiver was thus sufficient to waive his
right to counsel. State v. Delebreau, 2014 WI App 21, 352
Wis. 2d 647, ¶19, 843 N.W.2d 441.
¶17 Delebreau petitioned this court for review, which we
granted on May 22, 2014.
II. STANDARD OF REVIEW
¶18 Whether Delebreau's right to counsel was violated is a
question of constitutional fact. When reviewing issues of
constitutional fact, we undertake a two-step analysis. State v.
Martwick, 2000 WI 5, ¶17, 231 Wis. 2d 801, 604 N.W.2d 552.
First, we accept the circuit court's findings of evidentiary or
historical fact in a suppression matter unless they are clearly
erroneous. Id., ¶18. Second, we independently review the
7
No. 2013AP1108-CR
application of constitutional principles to the facts. Id.,
¶17.
III. LEGAL BACKGROUND
¶19 We begin our analysis with a discussion of the legal
background surrounding the Sixth Amendment right to counsel.7
¶20 On April 1, 1986, the United States Supreme Court
issued its decision in Jackson. Jackson had been convicted of
second-degree murder based, in part, on a statement he made to
police following his request at arraignment that counsel be
appointed for him. Jackson, 475 U.S. at 628. Police had gone
to see Jackson after the arraignment, read Jackson his Miranda
rights, and upon waiver, elicited a statement from Jackson. Id.
¶21 The Court, in an opinion by Justice Stevens, held that
the statement should have been suppressed. Id. at 628-29. It
relied heavily on Edwards v. Arizona, 451 U.S. 477 (1981), which
held that "an accused person in custody who has 'expressed his
desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or
conversations with the police.'" Jackson, 475 U.S. at 626
(quoting Edwards, 451 U.S. at 484-85). The Court reasoned that,
although Edwards was a Fifth Amendment case, its extension to
7
The Sixth Amendment to the United States Constitution
states, in pertinent part, "In all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of
counsel for his defense." U.S. Const. amend. VI.
8
No. 2013AP1108-CR
cover the Sixth Amendment was appropriate because "the reasons
for prohibiting the interrogation of an uncounseled prisoner who
has asked for the help of a lawyer are even stronger after he
has been formally charged with an offense than before." Id. at
631.
¶22 The Jackson decision was not unanimous. Chief Justice
Burger concurred in the judgment on the basis of stare decisis,
but asserted that "plainly the subject calls for reexamination."
Jackson, 475 U.S. at 636-37 (Burger, C.J., concurring). Justice
Rehnquist, joined by two justices, vigorously dissented,
contending that Edwards created a prophylactic rule to protect a
defendant's Fifth Amendment privilege against compelled self-
incrimination——not a rule to bar a defendant's waiver of his
Miranda rights merely because the defendant had requested the
appointment of counsel. Jackson, 475 U.S. at 637-39 (Rehnquist,
J., dissenting).
¶23 In 2000 this court followed the Jackson majority in
Dagnall. Dagnall was charged with first-degree intentional
homicide in Wisconsin and was arrested for that charge on a
warrant in Florida. Dagnall, 236 Wis. 2d 339, ¶5. On the day
of his arrest, a Wisconsin attorney delivered a letter to the
authorities in Dane County stating that he represented Dagnall
and that the sheriff's department was not to interrogate Dagnall
about the homicide. Id., ¶6. Two officers, at least one of
whom was aware of the attorney's letter, traveled to Florida to
speak with Dagnall and return him to Wisconsin. Id., ¶7.
9
 No. 2013AP1108-CR
¶24 During their first interview, Dagnall told the
officers, "My lawyer told me that I shouldn't talk to you guys."
Id., ¶9. The officers read Dagnall his Miranda rights and
Dagnall agreed to talk up to the point he thought he might
incriminate himself. Id., ¶¶10-11. The following day the
officers conducted a second interview after they read Dagnall
his Miranda rights and Dagnall agreed to waive them. Id., ¶12.
One of the officers, Detective Kevin Hughes, talked to Dagnall
two more times after returning him to Wisconsin. Id., ¶13-14.
The last time, Dagnall asked if his attorney knew he was back in
Wisconsin; the detective said he didn't know and ended the
interrogation. Id.
¶25 We held that Dagnall did not need to invoke his right
to counsel because he was formally charged with a crime and
represented by counsel. Id., ¶4. The officers knew Dagnall was
represented by counsel and therefore did not have the authority
to question Dagnall about the crime. Id., ¶¶62, 64. We also
held that the Sixth Amendment right to counsel attaches at the
initiation of charges, and that the accused invokes the Sixth
Amendment right to counsel either by retaining counsel or by
having counsel appointed. Id., ¶¶52, 60. We explained that
authorities may not "knowingly exploit the opportunity to
confront the accused without accused's counsel being present."
Id., ¶51 (citing Maine v. Moulton, 474 U.S. 159, 176 (1985)).
¶26 As in the Supreme Court, there was a vigorous dissent.
Justice Crooks argued against a total prohibition on
interrogations after a defendant is formally charged and
10
No. 2013AP1108-CR
represented by counsel. Dagnall, 236 Wis. 2d 339, ¶68 (Crooks,
J., dissenting).
Such a bright line rule means that law enforcement
officials may not even question a person . . . once
charges are filed and the person has an attorney.
According to the majority, it makes no difference that
such an individual is given Miranda warnings, waives
his or her Fifth and Sixth Amendment rights, and
agrees to talk to police officers about the crime
charged.
Id., ¶69.
¶27 Nine years after Dagnall, the United States Supreme
Court reversed course in Montejo. Montejo was arrested in
connection with a robbery and murder. He waived his Miranda
rights, and after police interrogated him for two days, he
confessed to the murder. Montejo, 556 U.S. at 781. Later,
Montejo was brought before a judge for Louisiana's equivalent of
a preliminary hearing. He was charged with the crime, and the
court ordered appointment of counsel. Id.
¶28 Following the hearing, two police detectives visited
Montejo and asked him to take them to where he had disposed of
the murder weapon. Id. at 781-82. The detectives read Montejo
his Miranda rights and he agreed to go on the trip. Id. at 782.
During the trip, Montejo penned a letter of apology to the
victim's widow. Id. After the trip, Montejo met with his
attorney for the first time. Id. The letter he had written was
admitted into evidence at trial, and Montejo was convicted. Id.
¶29 In reviewing the case, the Court overruled Jackson and
its presumption that waivers of the right to counsel are invalid
11
No. 2013AP1108-CR
when given after defendants assert their right to counsel. The
Court also clarified that all defendants have the right to
counsel during critical stages of the criminal process,
including interrogations, so that a valid waiver of Sixth
Amendment rights must be knowing, intelligent, and voluntary.
Id. at 786. However, the Court held that a represented
defendant may waive the Sixth Amendment right to counsel after
receiving proper Miranda warnings without consulting counsel.
Id.
¶30 We addressed this development in Forbush in 2011. The
State charged Forbush with second-degree sexual assault and
false imprisonment. Forbush, 332 Wis. 2d 620, ¶3. Forbush was
arrested in Michigan and made a court appearance there in which
he was represented by his brother, a lawyer. Id., ¶6. He was
subsequently returned to Wisconsin where the Sheboygan County
District Attorney's office and a detective with Sheboygan County
Sheriff's Department had been notified that Forbush was
represented by counsel. Id., ¶3.
¶31 Before his first court appearance in Sheboygan County,
Forbush was approached by a different Sheboygan County
detective. The detective began by reading the Miranda rights to
Forbush and then asked whether Forbush would be willing to waive
his right to counsel. Id., ¶4. Forbush waived his rights and
began answering questions. Immediately following the
questioning, Forbush was taken to his initial appearance where
he was represented by local counsel as well as his brother.
Id., ¶5.
12
 No. 2013AP1108-CR
¶32 Before trial, Forbush moved to suppress the statements
and the circuit court granted the motion. Id., ¶7. The circuit
court found that authorities had violated Forbush's Sixth
Amendment rights because they knew he was already represented by
counsel at the time of questioning. Id.
¶33 The court of appeals reversed,8 noting that Montejo had
overturned Jackson, and "held that the Sixth Amendment does not
prevent police from questioning charged and represented
defendants." Id., ¶8. The court of appeals determined that the
circuit court based its decision on Dagnall, which was
effectively overruled by Montejo. Id.
¶34 We reversed the court of appeals in a case that
produced five separate opinions. The lead opinion, authored by
Justice Roggensack, narrowly interpreted Montejo as removing the
presumption of a Sixth Amendment violation for represented
defendants in cases where it is unclear whether they invoked
their right to counsel. Id., ¶51. Chief Justice Abrahamson,
joined by Justice Bradley, conceded that Montejo superseded the
state's previous interpretation of the Sixth Amendment right to
counsel in Dagnall. Forbush, 332 Wis. 2d 620, ¶64 (Abrahamson,
C.J., concurring). However, the Chief Justice contended that
the right to counsel under the Wisconsin Constitution is more
robust than the right under the Sixth Amendment of the U.S.
Constitution. Id., ¶71.
8
State v. Forbush, 2010 WI App 11, 323 Wis. 2d 258, 779
N.W.2d 476.
13
No. 2013AP1108-CR
¶35 A third opinion noted that Montejo was not in effect
at the time of Forbush's interrogation by the Sheboygan
detective. Id., ¶103 (Prosser, J., concurring). Thus, Dagnall
constituted the law of Wisconsin for law enforcement at that
time. Id., ¶88. Under Dagnall, Forbush would not need to re-
invoke his Sixth Amendment right because he was already
represented by counsel. Id., ¶92. However, the third opinion
observed that Montejo "is unquestionably the current controlling
law on the subject of the Sixth Amendment right to counsel."
Id., ¶116.
¶36 In dissent, Justice Crooks, joined by Justices Ziegler
and Gableman, contended that Montejo overruled Dagnall and that
a defendant's knowing, intelligent and voluntary waiver of the
right to counsel could be achieved through the Miranda warnings.
Id., ¶¶152-53 (Crooks, J., dissenting). In a separate dissent,
Justice Ziegler, joined by Justice Gableman, reasoned that even
though Dagnall articulated a sound, fair, and workable standard,
Montejo overruled Dagnall because Dagnall was grounded in the
Sixth Amendment of the U.S. Constitution, not Article I, Section
7 of the Wisconsin Constitution. Id., ¶157 (Ziegler, J.,
dissenting).
¶37 The common thread throughout this evolution of Sixth
Amendment case law is the need to balance police flexibility in
investigating criminal activity with the fundamentally fair
treatment of criminal defendants. Cases like Jackson and
Dagnall noted the special role of counsel after a suspect has
been charged and formally become a criminal defendant. E.g.,
14
No. 2013AP1108-CR
Jackson, 475 U.S. at 632 (acknowledging criminal defendants'
"right to rely on counsel as a 'medium' between [them] and the
State" after they are charged) (citation omitted); Dagnall, 236
Wis. 2d 339, ¶36. These cases equated the request for or
appointment of counsel as the equivalent of a defendant's
invocation of the right to counsel.
¶38 Contrary holdings have not been grounded in the idea
that the role of counsel after the initiation of charges is
somehow not important or even critical. Rather, the concerns
were more practical and recognized a defendant's authority to
knowingly, intelligently, and voluntarily waive his rights. For
example, one dissent in Dagnall offered the hypothetical of a
criminal defendant who "is given Miranda warnings, waives his or
her Fifth and Sixth Amendment rights, and agrees to talk to
police officers about the crime charged." Dagnall, 236
Wis. 2d 339, ¶69 (Crooks, J., dissenting). A bright line rule
prohibits the officers from speaking with such a defendant, thus
frustrating their investigatory role, even though the defendant
willingly consents to talk.9
9
As Chief Justice Burger put it:
The urge for "bright-line" rules readily
applicable to a host of varying situations would
likely relieve this Court somewhat from more than a
doubling of the Court's work in recent decades, but
this urge seems to be leading the Court to an
absolutist, mechanical treatment of the subject. At
times, it seems, the judicial mind is in conflict with
what behavioral——and theological——specialists have
long recognized as a natural human urge of people to
confess wrongdoing.
(continued)
15
No. 2013AP1108-CR
¶39 Practical concerns also underpinned the Court's
decision in Montejo. There, the Court observed that a vast
number of criminal defendants are indigent, and different states
treat counsel appointments for indigent defendants in different
ways. Montejo, 556 U.S. at 784-85. Some states automatically
appoint counsel for indigent defendants, while others require
indigent defendants to request counsel. Id. This difference in
practice makes a bright line rule unworkable, in part because
"[p]olice who did not attend the [preliminary] hearing would
have no way to know whether they could approach a particular
defendant; and for a court to adjudicate that question ex post
would be a fact-intensive and burdensome task, even if
monitoring were possible and transcription available." Id. at
785.
¶40 Keeping in mind that courts——including this court——
have sought to strike a balance between these considerations, we
turn to the current state of the law.
IV. DISCUSSION
A. Sixth Amendment Right to Counsel
¶41 We first examine whether Delebreau's waiver of his
Miranda rights was sufficient to waive his Sixth Amendment right
to counsel, as well as whether we should presume that his waiver
was invalid because he was represented by counsel. This
requires us to determine what law controls.
Michigan v. Jackson, 475 U.S. 625, 636-37 (1986) (Burger, C.J.,
concurring).
16
No. 2013AP1108-CR
¶42 Our holding in Dagnall was grounded in the Sixth
Amendment; the only issue we considered was "whether Dagnall
properly invoked the Sixth Amendment right to counsel."
Dagnall, 236 Wis. 2d 339, ¶3 (emphasis added). Accordingly, our
analysis relied extensively on United States Supreme Court case
law.10 We did not discuss the Wisconsin Constitution.
¶43 The United States Supreme Court, however, has final
authority over questions of federal constitutional law. Its
interpretation of the Sixth Amendment supersedes our own.11 The
question is therefore whether the Court superseded our holding
in Dagnall with its decision in Montejo and effectively
overruled the Dagnall decision.
¶44 The answer, quite simply, is "yes."
¶45 Montejo was decided on May 26, 2009. The published
decision of the court of appeals in State v. Forbush, 2010 WI
App 11, 323 Wis. 2d 258, 779 N.W.2d 476, was released on
December 29, 2009, and it said that Montejo had overruled
Dagnall, and that Forbush's waiver of his right to counsel was
therefore valid. This court's decision in Forbush did not come
10
E.g., McNeil v. Wisconsin, 501 U.S. 171 (1991); Patterson
v. Illinois, 487 U.S. 285 (1988); Jackson, 475 U.S. 625; Maine
v. Moulton, 474 U.S. 159 (1985); Edwards v. Arizona, 451 U.S.
477 (1981); Kirby v. Illinois, 406 U.S. 682 (1972).
11
"[T]he Supremacy Clause of the United States Constitution
compels adherence to United States Supreme Court precedent on
matters of federal law . . . ." State v. Jennings, 2002 WI 44,
¶3, 252 Wis. 2d 228, 647 N.W.2d 142.
17
No. 2013AP1108-CR
until after the relevant questioning in this case.12 Thus, our
decision in Forbush did not control the operative facts here.
In any event, a careful reading of the court's five opinions in
Forbush would have provided very little encouragement to
Delebreau.
¶46 In Forbush, every member of this court agreed that
Montejo had an effect on Dagnall. Five concluded that Montejo
effectively overruled Dagnall. See Forbush, 332 Wis. 2d 620,
¶¶64, 81 (Abrahamson, C.J., concurring); Id., ¶¶137, 155
(Crooks, J., dissenting). One stated that the decision in
Montejo "undercut many of the major underpinnings of
Dagnall . . . ." Id., ¶96 (Prosser, J., concurring). Finally,
the lead opinion "agree[d] with the State that Montejo did
modify Dagnall such that there is no presumption of a Sixth
Amendment violation due to police interrogation of a represented
defendant when the 'certain circumstances' of defendant match
those of defendant-Montejo." Id., ¶51 (lead opinion).
¶47 The upshot of Forbush was that "Montejo is
unquestionably the current controlling law on the subject of the
Sixth Amendment right to counsel." Id., ¶116 (Prosser, J.,
concurring).
¶48 The Supreme Court's holding in Montejo is clear that a
defendant is sufficiently apprised of his or her Sixth Amendment
12
Our decision in Forbush was released on April 29, 2011.
State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 769 N.W.2d 741.
The relevant questioning in this case took place on April 15 and
April 18, 2011.
18
No. 2013AP1108-CR
right to counsel by the Miranda warnings, and that a valid
Miranda waiver effectively waives the Sixth Amendment right to
counsel as well as the Fifth Amendment right to counsel.
Montejo, 556 U.S. at 786-87. Defendants are not entitled to a
presumption that their waiver of the presence of counsel is
invalid, even if they are already represented by counsel. Id.
at 789-90.
¶49 Given the above, the first of Delebreau's arguments——
that his Sixth Amendment right to counsel was violated——is
easily resolved. Delebreau makes no attempt to argue that his
Miranda waiver was invalid. Rather, he argues that the Miranda
waiver was insufficient to waive his Sixth Amendment right to
counsel. The United States Supreme Court disagrees. Therefore,
we hold that Delebreau's Sixth Amendment right to counsel was
not violated.13
B. Wisconsin Constitution
¶50 Our inquiry does not end with the Sixth Amendment.
Delebreau also argues that his questioning violated his right to
counsel under Article I, Section 7 of the Wisconsin
13
Delebreau also contends that his appearance in court with
an attorney was sufficient to invoke his right to counsel, such
that police could not even approach him and request that he
waive his right. However, he later concedes that "the rule
adopted by [Montejo v. Louisiana, 556 U.S. 778 (2009)] allows
police to interrogate a defendant after he has appeared in court
with counsel and requires the defendant to assert his right to
counsel in every contact with police." Therefore, it is of no
consequence that Delebreau's request to speak with police came
before his appearance in court with an attorney and that police
questioned him after that appearance.
19
No. 2013AP1108-CR
Constitution. To determine if he is correct, we first ask
whether the Wisconsin Constitution provides the same post-charge
right-to-counsel protections as the Sixth Amendment. If our
constitution provides greater protections than the Sixth
Amendment, we would be confronted with whether Delebreau's
statements should have been suppressed under Article I, Section
7.
¶51 It is well understood that a state's constitution may
provide criminal defendants with rights beyond those afforded by
the United States Constitution. However, as a general rule, we
have expanded the Wisconsin Constitution's protections beyond
the scope of the federal constitution "only in cases where
either the state constitution or 'the laws of this state require
that greater protection of the citizens' liberties . . . be
afforded.'" State v. Agnello, 226 Wis. 2d 164, 180, 593
N.W.2d 427 (1999) (quoting State v. Doe, 78 Wis. 2d 161, 172,
254 N.W.2d 210 (1977)). "Where . . . the language of the
provision in the state constitution is 'virtually identical' to
that of the federal provision or where no difference in intent
is discernible, Wisconsin courts have normally construed the
state constitution consistent with the United States Supreme
Court's construction of the federal constitution." Id. at 180-
81 (citing State v. Tompkins, 144 Wis. 2d 116, 133, 423
N.W.2d 823 (1988)).
¶52 Article I, Section 7 of the Wisconsin Constitution
provides, "In all criminal prosecutions the accused shall enjoy
the right to be heard by himself and counsel . . . ." Its
20
No. 2013AP1108-CR
federal analogue in the Sixth Amendment states, "In all criminal
prosecutions, the accused shall enjoy the right . . . to have
the assistance of counsel for his defense." We see no
discernible difference between these two provisions as they
relate to the right to counsel. Nothing suggests that "the
right to be heard by . . . counsel" should be any more expansive
than "the right . . . to have the assistance of counsel . . . ."
¶53 Delebreau holds up State v. Bevel, 745 S.E.2d 237 (W.
Va. 2013), and State v. Lawson, 297 P.3d 1164 (Kan. 2013), as
possible avenues for finding greater rights under the Wisconsin
Constitution. In Lawson, the Supreme Court of Kansas held that
a Kansas statute provided greater protections than the Sixth
Amendment. Id. at 1173-74. Wisconsin does not have a similar
statute, so Lawson does not advance Delebreau's argument. In
Bevel, the West Virginia Supreme Court of Appeals held that West
Virginia's own constitution provided greater protections than
those afforded by the Sixth Amendment under Montejo despite a
history of interpreting the right under the West Virginia
Constitution as consistent with the right under the Sixth
Amendment. Bevel, 745 S.E.2d at 247. While this is similar to
the situation in Wisconsin, the holding in West Virginia is
inconsistent with our precedent regarding constitutional
interpretation. In any event, the question is not whether a
state may offer greater protections than those in Montejo but
whether Wisconsin does.
¶54 As the State notes, the various opinions in Forbush
indicate that a majority of the court held that the Wisconsin
21
No. 2013AP1108-CR
Constitution and the United States Constitution provide the same
protections in this context. We need not dissect the opinions
in Forbush to say that that holding is consistent with
precedent.
¶55 In State v. Klessig, we said:
A criminal defendant in Wisconsin is guaranteed this
fundamental right to the assistance of counsel for his
defense by both Article I, § 7 of the Wisconsin
Constitution and the Sixth Amendment of the United
States Constitution . . . . The scope, extent, and,
thus, interpretation of the right to the assistance of
counsel is identical under the Wisconsin Constitution
and the United States Constitution.
State v. Klessig, 211 Wis. 2d 194, 201-03, 465 N.W.2d 716 (1997)
(footnotes omitted) (citations omitted). See also State v.
Sanchez, 201 Wis. 2d 219, 226, 548 N.W.2d 69 (1996) ("The
language of the Wisconsin provision, on its face, does not
appear to differ so substantially from the federal
Constitution's guarantee of the right to counsel so as to create
a different right.").
¶56 Delebreau touts the importance of the right to
counsel, but does not explain how the United States Supreme
Court's interpretation of the right under the Sixth Amendment
fails to protect it. We see no reason to deviate from our prior
practice of interpreting the Wisconsin Constitution's right to
counsel as coextensive with the right under the federal
constitution.
¶57 Accordingly, because we hold that Delebreau's right to
counsel was not violated under the Sixth Amendment, we also hold
22
No. 2013AP1108-CR
that his right to counsel was not violated under Article I,
Section 7 of the Wisconsin Constitution.
C. Other Considerations
¶58 Before concluding, we pause briefly to note that
today's ruling should not be viewed as a sea change in the law.
As the United States Supreme Court explained, the Jackson rule
(and consequently, our rule in Dagnall) was a fourth layer of
prophylaxis deemed unnecessary by the Supreme Court because of
other protections——undisturbed by Montejo——already in place.
See Montejo, 556 U.S. at 793-95. "Under the Miranda-Edwards-
Minnick line of cases (which is not in doubt), a defendant who
does not want to speak to the police without counsel present
need only say as much when he is first approached and given the
Miranda warnings."14 Id. at 794.
¶59 Police still may not badger defendants into waiving
their right to counsel. See Patterson v. Illinois, 487 U.S.
285, 292 n.4 (1988). Police still must cease questioning of
criminal defendants when these defendants invoke their right to
counsel. See Edwards, 451 U.S. at 484. After a defendant
invokes the right to counsel, police still may not resume
questioning until counsel is present or 14 days have passed.
See Maryland v. Shatzer, 559 U.S. 98, 110 (2010); Minnick v.
Mississippi, 498 U.S. 146, 153 (1990).
14
Minnick v. Mississippi, 498 U.S. 146 (1990).
23
No. 2013AP1108-CR
¶60 Our holding merely clarifies that a valid Miranda
waiver is sufficient for a criminal defendant to waive the right
to have counsel present during questioning, and that courts need
not presume any waiver is involuntary simply because the
defendant is already represented by counsel.
V. CONCLUSION
¶61 First, we reaffirm the position of a majority of
justices in Forbush that Montejo effectively overruled Dagnall
in establishing that a waiver of Miranda rights is sufficient to
waive the Sixth Amendment right to counsel, and that such a
waiver is not presumed invalid merely because the defendant is
already represented by counsel. Second, we hold that Article I,
Section 7 of the Wisconsin Constitution does not provide greater
protections than the Sixth Amendment of the United States
Constitution in the context of a waiver of the right to have
counsel present during questioning. Accordingly, we affirm the
decision of the court of appeals.
¶62 By the Court.—The decision of the court of appeals is
affirmed.
24
No. 2013AP1108-CR.pdr
¶63 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). I
write in concurrence because I conclude that Jesse Delebreau's
constitutional right to counsel was not violated by Detective
Roman Aronstein's interviews on April 15 and 18 because
Delebreau initiated contact with law enforcement and was given
Miranda1 warnings before each interview. In addition, I agree
that the right to counsel under Article I, Section 7 of the
Wisconsin Constitution provides the same protections as does the
right to counsel under the Sixth Amendment of the United States
Constitution.2 State v. Forbush, 2011 WI 25, ¶15, 332 Wis. 2d
620, 796 N.W.2d 741; State v. Sanchez, 201 Wis. 2d 219, 226, 548
N.W.2d 69 (1996).
¶64 I write separately because I conclude that the
majority opinion overstates the United States Supreme Court's
holdings in Montejo v. Louisiana, 556 U.S. 778 (2009). Montejo
directs that a defendant who has been charged with a crime must
take affirmative action in order to invoke his or her Sixth
Amendment right to counsel, and that without an invocation by
the defendant, no violation of a defendant's constitutional
right to counsel occurs when a defendant is questioned. Id. at
797.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Because I write in concurrence and because this is not a
new conclusion, I do not further detail that the Sixth Amendment
of the United States Constitution and Article I, Section 7 of
the Wisconsin Constitution provide the same protections to a
defendant who has been charged with criminal conduct.
1
No. 2013AP1108-CR.pdr
I. BACKGROUND
¶65 On March 31, 2011, Jesse Delebreau was taken into
custody on a probation hold. Shortly thereafter, he gave a jail
employee a written request to speak with a drug enforcement
officer.
¶66 On April 14, Delebreau was charged with a sale of
heroin; he appeared via video-conferencing from the jail on that
charge. Attorney William Fitzgerald, of the State Public
Defenders Office, also appeared. However, Attorney Fitzgerald
was uncertain whether he could represent Delebreau due to a
potential conflict of interest.
¶67 On April 15, Detective Aronstein, a member of the Drug
Task Force, met with Delebreau in response to Delebreau's
written request. Aronstein met with Delebreau again on April
18. Aronstein gave Delebreau Miranda warnings before the start
of each interview. In response to those warnings, Delebreau
affirmatively waived his right to counsel.
¶68 Delebreau made incriminating statements during both
interviews. He also signed a written statement admitting that
he sold heroin, based on his self-identification as a
participant in a video of the drug sale.
¶69 On April 27, a rescheduled initial appearance was
held. Delebreau and Attorney Peter Kraft appeared in court,
whereupon the court noted, "He's making an appearance for the
first time with the attorney that will be representing him as
2
No. 2013AP1108-CR.pdr
this case goes forward."3 However, again, the record does not
establish whether Delebreau took any affirmative steps that
caused Attorney Kraft or any other attorney to appear on his
behalf on the pending drug charges.
¶70 Prior to trial, Delebreau moved to suppress his
statements, claiming Aronstein's interviews violated his Sixth
Amendment right to counsel. At the hearing on Delebreau's
motion, Attorney Fitzgerald testified that as an attorney for
the Public Defenders Office, he would have received notice when
"probation and parole indicates that they're going to commence
revocation proceedings, and a person from our office goes there
to see if those people want to be interviewed for eligibility
determination." At this point Attorney Wendy Lemkuil of the
Brown County District Attorney's Office interrupted Attorney
Leonard Kachinsky's questioning of Attorney Fitzgerald to offer
a stipulation.
¶71 After accepting the proposed stipulation that
established April 14 as the date on which formal charges were
filed, Attorney Kachinsky said, "Perhaps there [are] a few more
questions as to Mr. Delebreau actually requesting counsel I need
to ask." Attorney Kachinsky then asked, "When you interviewed
Mr. Delebreau, do the records of your office indicate whether or
not he requested the services of the State Public Defender to
represent him on criminal charges?" Attorney Lemkuil objected
3
The record reflects that on May 5, 2011, Delebreau and
Attorney Genelle Johnson appeared. A waiver of the preliminary
hearing was made and accepted.
3
No. 2013AP1108-CR.pdr
on relevancy grounds, to which objection Attorney Kachinsky
explained, "I think the issue is whether or not he requested
counsel as opposed to the State Public Defender just jumping
in." Attorney Kachinsky accurately perceived the Montejo issue.
¶72 Unfortunately, Attorney Kachinsky's question was never
answered and consequently, the record does not conclusively
establish whether Delebreau took affirmative action to invoke
his right to counsel and the date or dates on which any such
action may have taken place.
¶73 The circuit court denied the motion to suppress.
Delebreau was convicted by a jury that was presented with his
statements to Aronstein.
II. DISCUSSION
A. Standard of Review
¶74 Whether a defendant who has been charged with a crime
has invoked his or her right to counsel is a two-part question.
Forbush, 332 Wis. 2d 620, ¶10. "We uphold the circuit court's
findings of historical or evidentiary fact unless they are
clearly erroneous." Id. In addition, we independently review
the application of constitutional principles to facts found.
Id.
¶75 Whether a defendant has waived his Sixth Amendment
right to counsel by initiating contact with law enforcement is
also a question of law for our independent review. Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981).
4
No. 2013AP1108-CR.pdr
B. Right to Counsel
1. General principles
¶76 A defendant's Sixth Amendment right to counsel arises
when he or she is charged with a crime. Patterson v. Illinois,
487 U.S. 285, 290 (1988) (explaining that "[t]here can be no
doubt that petitioner had the right to have the assistance of
counsel at his postindictment interviews with law enforcement").
Under United States Supreme Court precedent, once charges are
filed, the "Sixth Amendment guarantees a defendant the right to
have counsel present at all 'critical' stages of the criminal
proceedings." Montejo, 556 U.S. at 786.
¶77 However, the Sixth Amendment right must be invoked
before its protections will be afforded. Id. at 789 (reasoning
that "a defendant who never asked for counsel has not yet made
up his mind in the first instance"). Once a defendant
affirmatively invokes his right to counsel, law enforcement
cannot badger him into waiving that right. Id. at 794-95
(explaining that a defendant who invokes his right to counsel is
protected because "[a]t that point, not only must the immediate
contact end, but 'badgering' by later requests is prohibited.").
¶78 The right to counsel under the Sixth Amendment can be
waived, just as the Fifth Amendment right can. Id. at 786.
Therefore, when a defendant has been given Miranda warnings,
which advise as to the right to counsel and the consequences of
proceeding in the absence of counsel and the defendant chooses
to answer questions, Miranda warnings are sufficient to provide
the foundation for waivers of both the Fifth and the Sixth
5
No. 2013AP1108-CR.pdr
Amendments rights to counsel. Id.; Patterson, 487 U.S. at 296.
The right to counsel also can be waived before or after its
invocation by a defendant who initiates contact with law
enforcement and volunteers a statement. State v. Kramar, 149
Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989).
2. Delebreau's rights
¶79 At the time Delebreau spoke to Aronstein, the record
does not reflect whether Delebreau had affirmatively invoked his
Sixth Amendment right to counsel. Attorney Kachinsky recognized
that although the Sixth Amendment right to counsel attaches when
criminal charges are filed, Delebreau nevertheless had the
obligation to invoke that right before Sixth Amendment
protections would be afforded to him. Montejo, 556 U.S. at 797
(concluding that "[i]f Montejo made a clear assertion of the
right to counsel when the officers approached him about
accompanying them on the excursion for the murder weapon, then
no interrogation should have taken place unless Montejo
initiated it"). However, Attorney Kachinsky's questioning of
Attorney Fitzgerald left in doubt whether Delebreau had invoked
his Sixth Amendment right to counsel.
¶80 Here, however, even assuming arguendo that Delebreau
did affirmatively invoke his Sixth Amendment right to counsel,
Delebreau's statements to law enforcement were initiated by his
written request to speak with drug enforcement personnel.
Aronstein's interviews with Delebreau on April 15 and April 18
occurred in direct response to Delebreau's written request.
Furthermore, prior to each interview, Aronstein read Delebreau
6
No. 2013AP1108-CR.pdr
Miranda warnings and Delebreau affirmatively chose to proceed.
Those warnings were sufficient protection for Delebreau's Sixth
Amendment right to counsel. Id. at 786; Patterson, 487 U.S. at
296. Therefore, no constitutional right was violated when
Aronstein interviewed Delebreau, and the circuit court did not
err in denying Delebreau's suppression motion.
III. CONCLUSION
¶81 Delebreau's constitutional right to counsel under
state and federal constitutional provisions was not violated by
Aronstein's interviews because Delebreau initiated contact with
law enforcement and he was given Miranda warnings before each
interview. Accordingly, I respectfully concur to the majority
opinion.
7
No. 2013AP1108-CR.ssa
¶82 SHIRLEY S. ABRAHAMSON, J. (dissenting). On April
14, 2011, the defendant was charged with delivering heroin and
made his initial appearance in court, where he was represented
by a public defender. The defendant thereafter made
incriminating statements during two custodial interrogations.
¶83 The core issue presented is whether Article I, Section
7 of the Wisconsin Constitution, which affords the defendant the
right to counsel, requires suppression of the defendant's
incriminating statements.1 I conclude that it does.
¶84 The law enforcement agent who interrogated the
defendant was apparently unaware that charges had been filed
against the defendant and that the defendant was represented by
counsel. The agent did not contact the defendant's attorney and
the defendant's attorney was not present for the interrogations.
Instead, the agent read the defendant his Miranda rights,2 which
the defendant waived.
¶85 In considering whether the custodial interrogations of
the defendant were permissible under the Wisconsin Constitution
in light of the defendant's Miranda waiver, and thus whether the
defendant's incriminating statements were admissible at trial, I
would adhere to this court's reasoning in State v. Dagnall, 2000
WI 82, 236 Wis. 2d 339, 612 N.W.2d 680.
1
"In all criminal prosecutions the accused shall enjoy the
right to be heard by himself and counsel . . . ." Wis. Const.
Art. 1, § 7.
2
See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that
before a law enforcement officer can interrogate a person in
custody, that person must be informed of specified rights).
1
No. 2013AP1108-CR.ssa
¶86 Dagnall established that once an accused is formally
charged with a crime and is represented by counsel on that
charge, the accused need not unambiguously invoke the right to
counsel to be protected from police-initiated interrogation.3
Rather, subsequent police-initiated interrogation is necessarily
improper. Any statements made by a defendant during such
interrogation must be suppressed.4 A waiver of the defendant's
Miranda rights will not render the interrogation constitutional
or the defendant's statements admissible.5
¶87 As Justice Ziegler and Justice Gableman have written,
Dagnall articulated a "sound, fair, and workable standard."6
¶88 Further, the Dagnall rule fits with Wisconsin's long
and cherished history of recognizing and protecting an accused's
right to an attorney under the Wisconsin Constitution.
¶89 In 1859, just 11 years after Wisconsin achieved
statehood, this court declared that an accused has a fundamental
right to an attorney under the Wisconsin Constitution.7 The
court reasoned that the right to a full and fair trial afforded
by the Wisconsin Constitution is meaningless when the accused
3
State v. Dagnall, 2000 WI 82, ¶61, 236 Wis. 2d 339, 612
N.W.2d 680.
4
Id., ¶¶64-66.
5
Id., ¶65.
6
See majority op., ¶36.
7
Carpenter v. Dane County, 9 Wis. 249 (*274) (1859). See
also County of Dane v. Smith, 13 Wis. 654 (*585), 656-57 (*586-
88) (1851).
2
No. 2013AP1108-CR.ssa
cannot obtain counsel.8 Accordingly, the court instructed
counties to appoint attorneys to represent indigent felons at
government expense.9
¶90 It was not until 1963, a full 104 years later, that
the United States Supreme Court recognized a similar right under
the federal constitution.10
¶91 Given this history, there can be no question that the
state constitutional right to counsel stands apart from, and has
meaning independent of, the corollary right under the federal
constitution. The longstanding state constitutional right to
counsel must be protected irrespective of the United States
Supreme Court's evolving interpretation of the federal
constitution. As explained in State v. Doe, 78 Wis. 2d 161,
172, 254 N.W.2d 210 (1977), this court "will not be bound by the
minimums which are imposed by the Supreme Court of the United
8
Carpenter, 9 Wis. at 251 (*276) ("[W]ould it not
be . . . mockery to secure to a pauper these solemn
constitutional guaranties for a fair and full trial . . . and
yet say to him when on trial, that he must employ his own
counsel, who could alone render these guaranties of any real []
value to him[?]").
9
Carpenter, 9 Wis. at 252 (*277) ("It seems eminently
proper and just that the county . . . should pay an attorney for
defending a destitute criminal.").
10
Gideon v. Wainright, 372 U.S. 335, 344 (1963) ("[I]n our
adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a
fair trial unless counsel is provided for him."). See also
State v. Forbush, 2011 WI 25, ¶71, 332 Wis. 2d 620, 796
N.W.2d 741 (Abrahamson, C.J., concurring); State v. Jennings,
2002 WI 44, ¶65, 252 Wis. 2d 228, 647 N.W.2d 142 (Abrahamson,
C.J., dissenting).
3
No. 2013AP1108-CR.ssa
States if it is the judgment of this court that the Constitution
of Wisconsin . . . require[s] that greater protection of
citizens' liberties ought to be afforded."
¶92 Thus, although the United States Supreme Court has
rejected the Dagnall rule in its interpretation of the federal
constitution,11 this court need not and should not do the same in
its interpretation of the state constitution.12 Unlike the
approach taken by the majority opinion today, the Dagnall rule
meaningfully protects "an accused's right to counsel in pre-
trial interrogation," which is "imperative to protect the trial
rights of an accused and to enhance the integrity of the fact-
finding process."13
¶93 I would adhere to Dagnall and would continue this
court's 156-year history of steadfastly protecting defendants'
right to counsel under the state constitution.
¶94 For the reasons set forth, I dissent.
¶95 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
11
See Montejo v. Louisiana, 556 U.S. 778 (2009).
12
See Forbush, 332 Wis. 2d 620, ¶¶66-71 (Abrahamson, C.J.,
concurring).
13
Id., ¶78 (Abrahamson, C.J., concurring).
4
No. 2013AP1108-CR.ssa
1