State v. Adrean L. Smith , 357 Wis. 2d 1 ( 2014 )

2014 WI 88
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1653-CR & 2012AP520-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Carlos A. Cummings,
Defendant-Appellant-Petitioner.
------------------------------------------------
State of Wisconsin,
Plaintiff-Respondent,
v.
Adrean L. Smith,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 346 Wis. 2d 279
(Ct. App. 2013 – Unpublished)
-----------------------------------------------
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 346 Wis. 2d 280, 827 N.W.2d 929
(Ct. App. 2013 – Unpublished)
OPINION FILED: July 24, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 19, 2014
SOURCE OF APPEAL:
COURT: Circuit/Circuit
COUNTY: Portage/Milwaukee
JUDGE: Thomas T. Flugaur/Thomas P. Donegan
JUSTICES:
CONCUR/DISSENT: PROSSER, BRADLEY, JJ., concurs in part, dissents
in part. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For defendant-appellant-petitioner Carlos A. Cummings,
there were briefs by David R. Karpe, Madison, and oral argument
by David R. Karpe.
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.
For defendant-appellant-petitioner Adrean L. Smith, there
were briefs by Dustin C. Haskell, assistant state public
defender, and oral argument by Dustin C. Haskell.
For the plaintiff-respondent, the cause was argued by
Thomas J. Balistreri, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
2
3
2014 WI 88
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2011AP1653-CR & 2012AP520-CR
(L.C. Nos. 2008CF418 & 2010CF5837)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JUL 24, 2014
Carlos A. Cummings, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
State of Wisconsin,
Plaintiff-Respondent,
v.
Adrean L. Smith,
Defendant-Appellant-Petitioner.
REVIEW of decisions of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of
two per curiam decisions of the court of appeals, State v.
Cummings, No. 2011AP1653-CR, unpublished slip op. (Wis. Ct. App.
Jan. 10, 2013), and State v. Smith, No. 2012AP520-CR,
unpublished slip op. (Wis. Ct. App. Jan. 23, 2013). In Cummings
Nos. 2011AP1653-CR & 2012AP520-CR
the court of appeals affirmed the orders of the Portage County
Circuit Court,1 denying Carlos A. Cummings' ("Cummings") motion
to suppress and motion for postconviction relief. In Smith the
court of appeals affirmed the order of the Milwaukee County
Circuit Court2 denying Adrean L. Smith's ("Smith") motion to
suppress.
¶2 Both Cummings and Smith argue that they unequivocally
invoked the right to remain silent prior to making incriminating
statements to police.3 Both Smith and Cummings argue that, as a
result, their incriminating statements should have been
suppressed. Cummings separately argues that the circuit court
should have granted his motion for postconviction relief because
the sentence imposed on him was unduly harsh.
¶3 The State argues that neither Cummings nor Smith
unequivocally invoked the right to remain silent, and further
argues that Cummings' sentence was not unduly harsh.
¶4 We conclude that neither Cummings nor Smith
unequivocally invoked the right to remain silent during their
interrogations. As a result, the circuit court properly denied
each defendant's motion to suppress the incriminating statements
1
The Honorable Thomas T. Flugar presided.
2
The Honorable Thomas P. Donegan presided.
3
We note at the outset that in both cases, the asserted
invocations of the right to remain silent occurred after the
suspects had been taken into custody, had received Miranda
warnings, had waived their Miranda rights, and were being
interrogated by police. See Miranda v. Arizona, 384 U.S. 436
(1966).
2
Nos. 2011AP1653-CR & 2012AP520-CR
made to police. We also conclude that Cummings' sentence was
not unduly harsh. We therefore affirm the court of appeals in
both cases.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. State v. Cummings
¶5 On November 18, 2008, police responded to a reported
shooting at a park in Stevens Point, Wisconsin. On arriving at
the scene, officers found the victim, James Glodowski
("Glodowski"), conscious and responsive despite having been shot
a number of times in the head and upper body.4 Glodowski told
police that he had been shot by a woman named "Linda," later
identified as Linda Dietze ("Dietze").
¶6 Glodowski explained that Dietze had called him and
asked him to meet her at the park. Dietze had told Glodowski
during the call that she wanted to repay $600 that she had
previously borrowed from him. Dietze also told Glodowski that
she had video evidence of an affair between his wife, Carla
Glodowski ("Carla"), and a man named "Carlos." When Glodowski
arrived at the park, Dietze handed him the videotape, pulled out
a .22 caliber pistol, and shot him. Before fleeing the scene on
foot, Dietze told Glodowski that she was sorry for shooting him
but that it was his wife's fault.
¶7 As part of their investigation, Stevens Point police
officers interviewed Cummings on the afternoon of the shooting.
4
As a result of the shooting, Glodowski lost the use of his
eye. He continues to have a bullet lodged near his brain stem
that cannot be removed surgically.
3
Nos. 2011AP1653-CR & 2012AP520-CR
During his interview with police, Cummings denied any knowledge
or involvement in the shooting, though he admitted that he was
friendly with both Dietze and Carla. At this point, Cummings
had not been arrested, nor had he been advised of his Miranda
rights. See Miranda v. Arizona, 384 U.S. 436 (1966). Cummings
was subsequently released.
¶8 Later that evening, police located Dietze at her
apartment and arrested her. Dietze admitted to shooting
Glodowski, but told police that meeting Glodowski at the park
had been Cummings' idea. Dietze further stated that Cummings
had driven her to and from the shooting, and that she had left a
backpack containing the pistol used in the shooting in Cummings'
vehicle. Officers also obtained surveillance footage of Dietze
being dropped off at a gas station near her apartment after the
shooting. The vehicle which dropped Dietze at the gas station
was similar to Cummings' vehicle.
¶9 Following the interrogation of Dietze, police returned
to Cummings' home and asked whether he would be willing to
return to the station for further questioning. After being
assured that he was still not in custody, Cummings agreed.
Officers then transported Cummings back to the police station.
¶10 Following some preliminary questions, Cummings was
advised of his Miranda rights. Cummings agreed, both orally and
in writing, to waive those rights and speak with the officers.
The officers then questioned Cummings about the inconsistency
between his prior statements and the version of events given by
4
Nos. 2011AP1653-CR & 2012AP520-CR
Dietze. During that discussion the following exchange took
place:
[OFFICER]: You've got a lot to lose, and at this
point, I'm telling you right now Carlos, no . . . all
bullshit aside, there's enough to charge you right
now! Okay? This is your opportunity to be honest
with me, to cut through all the bullshit and be honest
about what you know.
[CUMMINGS]: I'm telling you.
[OFFICER]: So why then do we got Carla and
[Dietze] telling us different?
[CUMMINGS]: What are they telling you?
[OFFICER]: I'm not telling ya! I'm not gonna
fuckin' lay all my cards out in front of you Carlos
and say, "This is everything I know!"
[CUMMINGS]: Well, then, take me to my cell. Why
waste your time? Ya know?
[OFFICER]: Cuz I'm hoping . . .
[CUMMINGS]: If you got enough . . .
[OFFICER]: . . . to get the truth from ya.
[CUMMINGS]: 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 . . .
[OFFICER]: If who believes you?
[CUMMINGS]: . . . and if they don't, I get
locked up.
¶11 The interrogation continued and Cummings eventually
admitted that he had driven Dietze to a location near the park
where the shooting had occurred. Cummings further stated that,
when Dietze returned to Cummings' car she told him that she had
5
Nos. 2011AP1653-CR & 2012AP520-CR
shot someone and asked to be taken home. Cummings admitted that
Dietze left her backpack with him but claimed that he found only
Dietze's wallet and keys inside. Cummings denied that he knew
Dietze intended to shoot Glodowski before driving her to the
park. He further denied that he ever possessed the gun used in
the shooting. Cummings was then informed that he was being
placed on a probation hold.5
¶12 Police then questioned Carla regarding the shooting.
Carla claimed to be having an affair with Cummings.6 She stated
that her husband would never grant her a divorce. Carla
explained that she and Cummings planned to have a third person
shoot and kill her husband so that they could collect his life
insurance policy and then flee together. Carla admitted her
part in the plan, which included a contribution of money towards
hiring the shooter.
5
At the time of the shooting, Cummings was on probation
term for three misdemeanor convictions of issuing worthless
checks, contrary to Wis. Stat. § 943.23(1) (2007-08).
6
Subsequent investigation would reveal that Cummings and
Carla were not, in fact, having an affair. Rather, it appears
from the record that Cummings was using Carla's affection for
him to secure the proceeds of her husband's life insurance
policy and never intended to have a relationship with her. This
fact, along with Dietze's documented mental health issues,
supports the circuit court's later conclusion that Cummings "was
using two women [who] were basically . . . cognitively disabled
for financial gain."
6
Nos. 2011AP1653-CR & 2012AP520-CR
¶13 On November 19, 2008, the day following the shooting,
police conducted a search of Cummings' home.7 The search
uncovered a case and magazine for a .22 caliber Smith & Wesson
pistol, and five .22 caliber shell casings hidden in the
basement. A subsequent search of the garage revealed the .22
caliber Smith & Wesson pistol used to shoot Glodowski hidden in
a box.
¶14 On December 2, 2008, Cummings made his initial
appearance on a criminal complaint filed by the State. The
complaint charged Cummings with Attempted First Degree
Intentional Homicide As a Party to the Crime, contrary to Wis.
Stat. §§ 939.05, 939.32, and 940.01(1) (2007-08),8 a Class B
felony. On December 17, 2008, the court held a preliminary
hearing and bound Cummings over for trial.
¶15 On January 5, 2009, Cummings was arraigned on the
information which charged him with one count of Attempted First
Degree Intentional Homicide With a Dangerous Weapon, As a Party
to the Crime, contrary to Wis. Stat. §§ 939.05, 939.32, 939.63,
and 940.01(1), a Class B felony, and two counts of Aiding a
Felon, contrary to § 946.47(1)(a) and (b), a Class G felony.
Due to Cummings' prior convictions for passing worthless checks,
all three charges included habitual criminal penalty enhancers
7
Cummings had provided his consent for the search the
previous day, and thus no warrant was required. State v.
Sobczak, 2013 WI 52, ¶11, 347 Wis. 2d 724, 833 N.W.2d 59 (citing
Georgia v. Randolph, 547 U.S. 103, 109 (2006)).
8
All subsequent references to the Wisconsin Statutes in
this section of the opinion are to the 2007-08 version.
7
Nos. 2011AP1653-CR & 2012AP520-CR
pursuant to Wis. Stat. § 939.62. Cummings entered pleas of not
guilty to all three charges.
¶16 On November 25, 2009, Cummings filed a motion to
suppress all the statements he made to police prior to being
given Miranda warnings and all the statements he made to police
after he asked, "Well, then, take me to my cell. Why waste your
time? Ya know?" during his interrogation.
¶17 In support of his motion, Cummings asserted that he
was "in custody" prior to being given Miranda warnings, and that
he had unequivocally invoked his right to remain silent when he
asked to be taken to a cell. He therefore argued that allowing
the prosecution to use those statements would violate his right
against self-incrimination. See U.S. Const. amend. V; Wis.
Const. Art. I, § 8.
¶18 The State opposed Cummings' motion. The State argued
that Cummings was not in custody at the time the interrogation
began, and was not interrogated until after he had received
Miranda warnings. The State further argued that Cummings'
statement——"Well, then, take me to my cell. Why waste your
time? Ya know?"——was not an unequivocal invocation of his right
to remain silent.
¶19 On December 2, 2009, the court held a hearing on
Cummings' motion. With respect to the first issue, the court
concluded that Cummings was "in custody" prior to being read
Miranda warnings and that a brief portion of the interrogation
occurred prior to Cummings being given the warnings. The court
8
Nos. 2011AP1653-CR & 2012AP520-CR
therefore suppressed the "limited responses" that Cummings gave
to police prior to being given Miranda warnings.
¶20 On second issue, however, the court concluded that
Cummings' statement was not an unequivocal invocation of the
right to remain silent, and therefore denied his motion to
suppress. The court determined, relying on State v. Markwardt,
2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, that Cummings
was "clearly" making an "attempt[] to get information from the
detectives" and was thus not attempting to end the
interrogation.
¶21 On January 8, 2010, Cummings pled no contest to First
Degree Reckless Injury, As a Party to the Crime, contrary to
Wis. Stat. §§ 939.05 and 940.23(1), a Class D felony, pursuant
to a plea agreement.9 In exchange for Cummings' plea, the State
agreed to dismiss and read in the remaining counts for
sentencing purposes and to dismiss the penalty enhancers. The
court accepted Cummings' plea, adjudged him guilty, and ordered
a presentence investigation report.
¶22 On March 5, 2010, the circuit court sentenced Cummings
to 24 years of imprisonment, with 14 years of initial
confinement to be followed by 10 years of extended supervision.
The court further ordered that Cummings pay $110,188.37 in
restitution to Glodowski.
9
The State filed an amended information on the day of
Cummings' no contest plea which substituted the charge of
Attempted First Degree Intentional Homicide with the charge of
First Degree Reckless Injury.
9
Nos. 2011AP1653-CR & 2012AP520-CR
¶23 On December 13, 2010, Cummings filed a motion for
postconviction relief in the circuit court. In his motion,
Cummings alleged that his trial counsel had been ineffective for
failing to ask the court for a risk reduction sentence, and that
the sentence imposed by the court was unduly harsh. On this
basis, Cummings asked to be resentenced or alternatively, for a
modification of his sentence. Cummings subsequently added a
request that the court vacate the DNA surcharge it had imposed,
pursuant to State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203,
752 N.W.2d 393.
¶24 On July 1, 2011, the circuit court granted in part and
denied in part Cummings' postconviction motion. The court
granted the portion of Cummings' motion related to the DNA
surcharge, but denied his request for resentencing or sentence
modification. The court rejected Cummings' claim that his trial
counsel had been ineffective for failing to request a risk
reduction sentence. The court concluded that, given the
seriousness of the offense, requesting a risk reduction sentence
would have been "a complete waste of time." The court further
concluded that the sentence it had imposed was not unduly harsh:
[T]his court rarely gives a sentence that is maximum
or something close to the maximum.
But in this case, it felt that it was required,
it was necessary, or it would unduly depreciate the
seriousness of the offense, and there was a real need
to protect the public. When the court finally learned
what the motive was behind this, it was rather shocked
that Mr. Cummings was using two women [who] were
basically . . . cognitively disabled for financial
gain.
10
Nos. 2011AP1653-CR & 2012AP520-CR
¶25 On July 15, 2011, Cummings appealed both his
conviction and the court's denial of his motion for
postconviction relief. Cummings argued that the circuit court
had erred in concluding that his statement——"Well, then, take me
to my cell. Why waste your time? Ya know?"——was not an
unequivocal invocation of his right to remain silent. Cummings
further argued that the sentence imposed by the circuit court
was unduly harsh.
¶26 On January 10, 2013, the court of appeals affirmed the
circuit court in all respects. Cummings, No. 2011AP1653-CR,
unpublished slip op., ¶1.
¶27 The court of appeals first concluded that Cummings'
statement was not an unambiguous invocation of the right to
remain silent. The court found that "a competing, and indeed
more compelling, interpretation [of Cummings' statement] is that
he was merely attempting to obtain more information from the
police about what his co-conspirators had been saying." Id.,
¶9. Because Cummings' statement was subject to a "reasonable
competing inference" the court concluded that it was not
unambiguous. Id., ¶7 (citing Markwardt, 306 Wis. 2d 420, ¶36).
¶28 The court further concluded that Cummings' sentence
was not unduly harsh, finding that "a sentence of fourteen years
of initial confinement and ten years of supervision, for
involvement in an offense that left the victim with the loss of
an eye and a bullet lodged near his brain stem, does not shock
the conscience of this court." Id., ¶14.
11
 Nos. 2011AP1653-CR & 2012AP520-CR
¶29 On February 15, 2013, Cummings petitioned this court
for review, which we granted on December 17, 2013.
B. State v. Smith
¶30 In late November 2010 Smith was interviewed by
Milwaukee Police Department Detective Travis Guy ("Detective
Guy") regarding a series of violent armed robberies involving a
stolen van.10 At the outset, Smith was given Miranda warnings
and agreed to waive his rights and speak to police. Smith then
discussed his involvement in the theft of the van, and readily
answered Detective Guy's questions.
¶31 When Detective Guy began asking about the armed
robberies, however, Smith stated as follows:
Smith: See, I don't want to talk about, I don't
want to talk about this. I don't know nothing about
this.
Detective Guy: Okay.
Smith: I don't know nothing. See, look, I'm
talking about this van. I don't know nothing about no
robbery.11 Or no -- what's the other thing?
Detective Guy: Hmmm?
Smith: What was the other thing that this is
about?
10
The record does not reveal the precise date of Detective
Guy's initial interview with Smith.
11
The context of this statement, following extensive
discussion of Smith's knowledge of the stolen van, and his later
statement——"I'm talking about this van. This stolen van."——
strongly indicate that Smith intended this sentence to convey
that he didn't know anything about the involvement of a van in
any robberies.
12
Nos. 2011AP1653-CR & 2012AP520-CR
Detective Guy: Okay.
Smith: 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.
Detective Guy: I got a right to ask you about
it.
. . .
Smith: I don't know nothing about this. I'm
here for the van.
. . .
Detective Guy: You don't know anything about
this robbery that happened at [address] on the 23rd of
November where a woman was approached . . . ?
Smith: No. Uh-uh. I don't know nothing about
this.
¶32 Following this exchange, Detective Guy returned his
questioning to the topic of the stolen van. Later during the
interrogation, Detective Guy again returned to the topic of the
robberies, asking Smith "do you want to tell me about [the
robberies]?" Smith replied, "What I got to do with it? What
that got to do with me? I don't know nothing about no robbery,
see, that's what I'm saying! I don't rob people." Detective
Guy continued to ask Smith for information, and Smith
subsequently admitted his involvement in the armed robberies.
¶33 On November 29, 2010, the State filed a criminal
complaint against Smith charging him with seven counts of Armed
Robbery, as a Party to the Crime, contrary to Wis. Stat.
13
Nos. 2011AP1653-CR & 2012AP520-CR
§§ 943.32(2), 939.50(3)(c), and 939.05 (2009-10),12 a Class C
felony; three counts of Possession of a Firearm by a Felon,
contrary to Wis. Stat. §§ 941.29(2)(b) and 939.50(3)(g), a Class
G felony; two counts of Attempted Armed Robbery, as a Party to
the Crime, contrary to Wis. Stat. §§ 943.32(2), 939.50(3)(c),
939.05, and 939.32, a Class C felony; two counts of Burglary, as
a Party to the Crime, by Use of a Dangerous Weapon, contrary to
Wis. Stat. §§ 943.10(2)(e), 939.50(3)(e), 939.05, and
939.63(1)(b), a Class E felony; two counts of False
Imprisonment, as a Party to the Crime, by Use of a Dangerous
Weapon, contrary to Wis. Stat. §§ 940.30, 939.50(3)(h), 939.05,
and 939.63(1)(b), a Class H felony; one count of First Degree
Reckless Injury by Use of a Dangerous Weapon, contrary to Wis.
Stat. §§ 940.23(1)(a), 939.50(3)(d), and 939.63(1)(b), a Class D
felony; and one count of Operating a Vehicle Without the Owner's
Consent, contrary to Wis. Stat. §§ 943.23(3), and 939.50(3)(i),
a Class I felony.
¶34 On November 30, 2010, Smith made his initial
appearance. Smith received a copy of the complaint, and waived
its reading. The court found probable cause to continue holding
Smith, and set cash bail of $200,000. On December 9, 2010,
Smith waived his right to a preliminary hearing.
¶35 On January 10, 2011, Smith was arraigned on the
Information, which charged him with six counts of Armed Robbery,
12
All subsequent references to the Wisconsin Statutes in
this section are to the 2009-10 version.
14
Nos. 2011AP1653-CR & 2012AP520-CR
as a Party to the Crime, contrary to Wis. Stat. §§ 943.32(2),
939.50(3)(c), and 939.05, a Class C felony; and one count of
First Degree Reckless Injury While Armed, contrary to Wis. Stat.
§§ 940.23(1)(a), 939.50(3)(d), and 939.63(1)(b), a Class D
felony. Smith acknowledged receipt of the Information, waived
its reading, and pled not guilty to all counts.
¶36 On March 30, 2011, Smith filed a motion to suppress
the statements he made to Detective Guy regarding the robberies.
Smith argued that he had unequivocally invoked his right to
remain silent prior to admitting his involvement in the crimes,
and that his statements had been the product of coercion on the
part of Detective Guy.
¶37 The State opposed Smith's motion, arguing that Smith's
statements regarding the right to remain silent were ambiguous
and that his admissions had not been obtained through coercion.
¶38 On July 14, 2011, the circuit court held a hearing on
Smith's motion to suppress. After hearing brief argument from
the parties, the court denied Smith's motion. With respect to
Smith's invocation of the right to remain silent, the court
concluded that "[t]he defendant did not clearly assert his right
to remain silent. There was ambiguity." The court further
rejected Smith's argument regarding coercion, stating that it
"didn't find anything close to what would be considered coercive
tactics under the case law."
¶39 On July 27, 2011, Smith pled guilty to three counts of
armed robbery and one count of first degree reckless injury,
pursuant to a plea agreement. In exchange for Smith's pleas,
15
Nos. 2011AP1653-CR & 2012AP520-CR
the State agreed to dismiss and read in the remaining counts for
sentencing purposes. The court accepted Smith's pleas and
adjudged him guilty. The court then sentenced Smith to 35 years
imprisonment, with 25 years initial confinement to be followed
by 10 years of extended supervision.
¶40 On March 8, 2012, Smith appealed his convictions,
again arguing that he unambiguously invoked his right to remain
silent and that his incriminating statements should have been
suppressed.
¶41 On January 23, 2013, the court of appeals affirmed.
Smith, No. 2012AP520-CR, unpublished slip op., ¶1. The court
concluded that Smith was not attempting to terminate the
interview when he made his statements, but was rather indicating
that he did not wish to discuss one particular line of
questions. Id., ¶9. Because Smith continued his conversation
with police despite stating that he "[didn't] want to talk about
this," he had not unequivocally invoked his right to remain
silent. Id., ¶8.
¶42 On February 21, 2013, Smith petitioned this court for
review, which we granted on December 17, 2013.
II. STANDARD OF REVIEW
¶43 Whether a person has invoked his or her right to
remain silent is a question of constitutional fact. Markwardt,
306 Wis. 2d 420, ¶30 (citing State v. Jennings, 2002 WI 44, ¶20,
252 Wis. 2d 228, 647 N.W.2d 142; State v. Moats, 156 Wis. 2d 74,
94, 457 N.W.2d 299 (1990)).
16
Nos. 2011AP1653-CR & 2012AP520-CR
¶44 "When presented with a question of constitutional
fact, this court engages in a two-step inquiry." State v.
Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463
(citations omitted). "First, we review the circuit court's
findings of historical fact under a deferential standard,
upholding them unless they are clearly erroneous." Id.
(citations omitted). "Second, we independently apply
constitutional principles to those facts." Id. (citations
omitted).
¶45 "'We review a trial court's conclusion that a sentence
it imposed was not unduly harsh and unconscionable for an
erroneous exercise of discretion.'" State v. Grindemann, 2002
WI App 106, ¶30, 255 Wis. 2d 632, 648 N.W.2d 507 (emphasis in
original) (quoting State v. Giebel, 198 Wis. 2d 207, 220, 541
N.W.2d 815 (Ct. App. 1995)). "We will not set aside a
discretionary ruling of the trial court if it appears from the
record that the court applied the proper legal standards to the
facts before it, and through a process of reasoning, reached a
result which a reasonable judge could reach." Id. (citing Loy
v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).
III. ANALYSIS
A. The Right to Remain Silent
¶46 "Both the United States and Wisconsin Constitutions
protect persons from state compelled self-incrimination." State
v. Hall, 207 Wis. 2d 54, 67, 557 N.W.2d 778 (1997); see also
17
Nos. 2011AP1653-CR & 2012AP520-CR
U.S. Const. amend. V; Wis. Const. art. I, § 8.13 In order to
protect suspects from the "inherently compelling pressures" of
custodial interrogation, the United States Supreme Court has
developed procedural guidelines to be followed by police during
such interrogations. See Miranda, 384 U.S. at 467; see also
Markwardt, 306 Wis. 2d 420, ¶23. "A suspect's right to counsel
and the right to remain silent are separately protected by these
procedural guidelines." Markwardt, 306 Wis. 2d 420, ¶23 (citing
Miranda, 384 U.S. at 467–73).
¶47 After a suspect has been taken into custody, given the
Miranda warnings, and waived his Miranda rights, the right to
remain silent still guarantees a suspect's "right to cut off
questioning" during a custodial interrogation. Id., ¶24 (citing
Michigan v. Mosley, 423 U.S. 96, 103-04 (1975)).
¶48 Under these circumstances, a suspect must
"unequivocally" invoke the right to remain silent in order to
"cut off questioning." See Berghuis v. Thompkins, 560 U.S. 370,
386 (2010)(quotation marks omitted); Markwardt, 306 Wis. 2d 420,
13
This court has previously held that "[t]he state
constitutional right against compulsory self-incrimination is
textually almost identical to its federal counterpart." State
v. Jennings, 2002 WI 44, ¶40, 252 Wis. 2d 228, 647 N.W.2d 142.
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." State v. Agnello, 226 Wis. 2d 164, 180–81, 593
N.W.2d 427 (1999) (citing State v. Tompkins, 144 Wis. 2d 116,
133, 423 N.W.2d 823 (1988); Kenosha County v. C&S Management,
Inc., 223 Wis. 2d 373, 588 N.W.2d 236 (1999)).
18
Nos. 2011AP1653-CR & 2012AP520-CR
¶26 (citing State v. Ross, 203 Wis. 2d 66, 75-79, 552 N.W.2d 428
(Ct. App. 1996)); see also Fifth Amendment-Invocation of the
Right to Cut Off Questioning, 124 Harv. L. Rev. 189, 196-97
(2010).
¶49 This standard, sometimes called the "clear
articulation rule," was originally developed by the United
States Supreme Court to govern invocation of the right to
counsel. See Davis v. United States, 512 U.S. 452 (1994). In
State v. Ross, the Wisconsin Court of Appeals extended the rule
to cover invocations of the right to remain silent, requiring
suspects to "unequivocally" invoke the right in order to cut off
questioning by police. Ross, 203 Wis. 2d at 70.
¶50 Recently, the Supreme Court confirmed that invocation
of the right to counsel and invocation of the right to cut off
questioning both required unequivocal invocation by a suspect.
See Berghuis, 560 U.S. at 381-82 (citing Davis, 512 U.S. at
459). Berghuis further confirmed that the unequivocal
invocation standard is an objective test. 560 U.S. at 381; see
also Davis, 512 U.S. at 458-59.
¶51 If a suspect's statement is susceptible to "reasonable
competing inferences" as to its meaning, then the "suspect did
not sufficiently invoke the right to remain silent." Markwardt,
306 Wis. 2d 420, ¶36 (citation omitted). If a suspect makes
such an ambiguous or equivocal statement, "police are not
required to end the interrogation . . . or ask questions to
clarify whether the accused wants to invoke his or her Miranda
19
Nos. 2011AP1653-CR & 2012AP520-CR
rights." Berghuis, 560 U.S. at 381 (citing Davis, 512 U.S. at
461-62).
¶52 Once a suspect has invoked the right to remain silent
"all police questioning must cease——unless the suspect later
validly waives that right and 'initiates further communication'
with the police." Ross, 203 Wis. 2d at 74 (quoting Miranda, 384
U.S. at 473–74; Edwards v. Arizona, 451 U.S. 477, 484–85
(1981)). Thus, the "key question" is whether the suspect
unequivocally invoked the right to cut off questioning during
the interrogation. Markwardt, 306 Wis. 2d 420, ¶25 (citing
Ross, 203 Wis. 2d at 74).
1. State v. Cummings
¶53 Cummings argues that his statement——"Well, then, take
me to my cell. Why waste your time? Ya know?"——constituted an
unequivocal invocation of his right to remain silent, and thus,
should have served to cut off further questioning. We disagree.
¶54 In the context of the ongoing back and forth between
Cummings and the officers, this statement was susceptible to at
least two "reasonable competing inferences" as to its meaning.
Markwardt, 306 Wis. 2d 420, ¶36. Cummings is correct that his
statement could be read literally: as a request that he be
removed from the room because he was no longer interested in
talking to the officers. Another possibility, however, is that
his statement was a rhetorical device intended to elicit
additional information from the officers about the statements of
his co-conspirators. Indeed, the plain language of the
statement seems to be an invitation to the officer to end the
20
Nos. 2011AP1653-CR & 2012AP520-CR
interrogation, presumably because continued questioning would
prove fruitless unless the officer provided additional
information to Cummings. Such a statement is not an unequivocal
assertion that Cummings wanted to end the interrogation.
¶55 Both the circuit court and the court of appeals
considered this second interpretation to be the more compelling
one of the two. See Cummings, No. 2011AP1653, unpublished slip
op., ¶8. We need not choose one as more compelling than the
other in order to conclude that Cummings' statement was not an
unequivocal invocation of the right to remain silent. See
Markwardt, 306 Wis. 2d 420, ¶36.
¶56 Cummings further argues that his statement was an
unequivocal invocation because it was very similar to the
statements of the suspect in State v. Goetsch, 186 Wis. 2d 1,
519 N.W.2d 634 (1994). In Goetsch the suspect stated, "I don't
want to talk about this any more. I've told you, I've told you
everything I can tell you. You just ask me any questions and I
just want to get out of here. Throw me in jail, I don't want to
think about this." Id. at 7. The court of appeals in Goetsch
concluded that this statement constituted an unequivocal
invocation of the right to remain silent. Id. at 7-9.
¶57 While the statement in Goetsch is superficially
similar to the one at issue in this case, there are critical
differences. First, the suspect in Goetsch, in addition to
referencing jail, clearly stated that he did not wish to speak
with police. Cummings did not make any such additional
statements. Second, the suspect in Goetsch expressed that he
21
Nos. 2011AP1653-CR & 2012AP520-CR
was exhausted, and he had disengaged from the conversation.
Cummings, on the other hand, made his statement while verbally
sparring with police. Finally, the suspect in Goetsch had
nothing to gain from being thrown in jail except the end of the
interview. Thus his statement is not susceptible to any
"reasonable competing inferences" as to its meaning. Markwardt,
306 Wis. 2d 420, ¶36. As we have discussed, this is not the
case with Cummings' statement.
¶58 In fact, Cummings' statement in the case at issue is
more similar, in terms of context, to the statement in Markwardt
than the one in Goetsch. In Markwardt the suspect stated
"[t]hen put me in jail. Just get me out of here. I don't want
to sit here anymore, alright. I've been through enough today."
Markwardt, 306 Wis. 2d 420, ¶35. The suspect in Markwardt made
her statement during a sequence of verbal "fencing," wherein the
interrogating officer repeatedly caught the suspect "in either
lies or at least differing versions of the events." Id., ¶36.
Because of this context, the court of appeals concluded that the
suspect's statement was subject to "reasonable competing
inferences" as to its meaning. As a result, the court of
appeals concluded that the suspect's statement was not an
unequivocal invocation of the right to remain silent, and thus
did not serve to cut off questioning. Id.
¶59 Cummings' statement——"Well, then, take me to my cell.
Why waste your time? Ya know?"——similarly occurred during a
period of verbal back and forth between Cummings and the
officers, and is thus similarly subject to reasonable competing
22
Nos. 2011AP1653-CR & 2012AP520-CR
inferences. As a result of these competing inferences, we
conclude that Cummings' statement was not an unequivocal
invocation of the right to remain silent. We therefore affirm
the court of appeals.
2. State v. Smith
¶60 Smith argues that his statement——"See, I don't want to
talk about, I don't want to talk about this. I don't know
nothing about this."——in response to Detective Guy's questions
constituted an unequivocal invocation of his right to remain
silent. Smith further notes that he repeated his assertion that
he didn't want to talk three different times within the space of
just a few sentences.
¶61 We agree that, standing alone, Smith's statements
might constitute the sort of unequivocal invocation required to
cut off questioning, and we further acknowledge that Smith's
statement presents a relatively close call. In the full context
of his interrogation, however, Smith's statements were not an
unequivocal invocation of the right to remain silent.
¶62 When placed in context it is not clear whether Smith's
statements were intended to cut off questioning about the
robberies, cut off questioning about the minivan, or cut off
questioning entirely. Some of Smith's statements are also
exculpatory statements or assertions of innocence, which do not
indicate a desire to end questioning at all. Prior to Smith's
statement, Detective Guy had been asking Smith about his
involvement in the theft of the minivan. Smith had been
23
Nos. 2011AP1653-CR & 2012AP520-CR
participating in this portion of the questioning in a fairly
straightforward and cooperative fashion.
¶63 When the topic of the armed robberies came up, Smith
stated, "I don't want to talk about this" four times, but also
stated, "I don't know nothing about this" a total of seven
times. In some instances Smith seems to mean the van when he
uses the words "this" or "that," but in other instances it seems
he means the robberies. In listening to the recording of the
interrogation, it seems that he meant to refer to the robberies
but this is not the only interpretation.
¶64 Further, while "I don't want to talk about this" seems
to indicate a desire to cut off questioning, "I don't know
nothing about this" is an exculpatory statement proclaiming
Smith's innocence. Such a proclamation of innocence is
incompatible with a desire to cut off questioning.
¶65 Given the apparent confusion, and although he was not
required by law to do so, Detective Guy gave Smith an
opportunity to clarify his statements when he asked, "Do you
want to tell me about [the robberies]?" In response, Smith
again proclaimed his innocence, stating: "I don't know nothing
about no robbery, see, that's what I'm saying! I don't rob
people."
¶66 Smith's own words also indicated a continued
willingness to answer questions. Following the statement that
Smith emphasizes——"See, I don't want to talk about, I don't want
to talk about this. I don't know nothing about this."——Smith
also stated: "I'm talking about this van. This stolen van. I
24
Nos. 2011AP1653-CR & 2012AP520-CR
don't know nothing about this stuff . . . I don't know nothing
about this. I'm here for the van." These additional statements
indicate that Smith was willing to continue answering questions
about the van, but was unwilling, or perhaps unable, to answer
questions about the robberies.
¶67 "[A] defendant may selectively waive his Miranda
rights, deciding to 'respond to some questions but not others.'"
State v. Wright, 196 Wis. 2d 149, 156, 537 N.W.2d 134 (Ct. App.
1995) (quoting Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir.
1988)). Such selective "refusals to answer specific questions,"
however, "do not assert an overall right to remain silent." Id.
at 157 (citing Fare v. Michael C., 442 U.S. 707, 726–27 (1979)).
¶68 Finally, our determination regarding the meaning of
Smith's statement need not be definitive to conclude that he did
not unequivocally invoke the right to remain silent. The mere
fact that Smith's statements could be interpreted as
proclamations of innocence or selective refusals to answer
questions is sufficient to conclude that they are subject to
"reasonable competing inferences" as to their meaning.
Markwardt, 306 Wis. 2d 420, ¶36.
¶69 Thus, under the facts and circumstances of the case at
issue, Smith did not unequivocally invoke his right to remain
silent, such that police were required to cut off their
questioning. We therefore affirm the court of appeals.
B. Unduly Harsh Sentence
¶70 "Within certain constraints, Wisconsin circuit courts
have inherent authority to modify criminal sentences." State v.
25
Nos. 2011AP1653-CR & 2012AP520-CR
Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828 (citing
State v. Hegwood, 113 Wis. 2d 544, 546, 335 N.W.2d 399 (1983)).
A circuit court may not, however, modify a sentence merely "on
reflection and second thoughts alone." Harbor, 333 Wis. 2d 53,
¶35 (citing State v. Wuensch, 69 Wis. 2d 467, 474, 480, 230
N.W.2d 665 (1975)). Ordinarily a defendant seeking a sentence
modification must show the existence of a "new factor" unknown
to the court at the time of sentencing. See, e.g., State v.
Ninham, 2011 WI 33, ¶88, 333 Wis. 2d 335, 797 N.W.2d 451.
¶71 In the absence of a new factor, a circuit court has
authority to modify a sentence only under certain narrow
circumstances. Among those circumstances is if "the court
determines that the sentence is unduly harsh or unconscionable."
Harbor, 333 Wis. 2d 53, ¶35 n.8 (citing State v. Crochiere, 2004
WI 78, ¶12, 273 Wis. 2d 57, 681 N.W.2d 524; Wuensch, 69
Wis. 2d 467; State v. Ralph, 156 Wis. 2d 433, 438, 456
N.W.2d 657 (Ct. App. 1990)).14
¶72 A sentence is unduly harsh or unconscionable "only
where the sentence is so excessive and unusual and so
disproportionate to the offense committed as to shock public
sentiment and violate the judgment of reasonable people
concerning what is right and proper under the circumstances."
14
The circuit court may also modify a sentence without a
new factor if it determines that the sentence originally imposed
was illegal or void, State v. Crochiere, 2004 WI 78, ¶12, 273
Wis. 2d 57, 681 N.W.2d 524, or if it relied on inaccurate
information when it imposed the original sentence. State v.
Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179, 717 N.W.2d 1.
26
Nos. 2011AP1653-CR & 2012AP520-CR
Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975)
(citations omitted).
¶73 Cummings argues that his sentence of 14 years of
initial confinement to be followed by 10 years of extended
supervision was unduly harsh. Cummings asserts that "near
maximum sentences" are "deserving of greater scrutiny than
sentences well within the normal statutory limits." Cummings
claims that "[s]uch sentences may be due to the erroneous
exercise of discretion." We agree with the court of appeals
that Cummings' sentence was not unduly harsh.
¶74 Cummings is correct that "[a] sentence well within"
the statutory limits is unlikely to be "so disproportionate to
the offense committed as to shock the public sentiment and
violate the judgment of reasonable people concerning what is
right and proper under the circumstances." State v. Daniels,
117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983) (citing
Ocanas, 70 Wis. 2d at 185). Near maximum sentences are not,
however, automatically suspect.
¶75 "'What constitutes adequate punishment is ordinarily
left to the discretion of the trial judge. If the sentence is
within the statutory limit, appellate courts will not interfere
unless clearly cruel and unusual.'" Ninham, 333 Wis. 2d 335,
¶85 (citation omitted). Further, we will not disturb the
exercise of the circuit court's sentencing discretion so long as
"it appears from the record that the court applied the proper
legal standards to the facts before it, and through a process of
27
Nos. 2011AP1653-CR & 2012AP520-CR
reasoning, reached a result which a reasonable judge could
reach." Grindemann, 255 Wis. 2d 632, ¶30 (citation omitted).
¶76 In the case at issue, the circuit court stated the
proper legal standards to be considered at sentencing. See
State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197.
The circuit court stated the reasons for the severe sentence on
the record, stating:
[T]his court rarely gives a sentence that is maximum
or something close to the maximum.
But in this case, it felt that is was required,
it was necessary, or it would unduly depreciate the
seriousness of the offense, and there was a real need
to protect the public.
¶77 Finally, while it is true that not every judge would
impose a maximum or near maximum sentence for the offenses
Cummings committed, it is hard to say that no reasonable judge
would do so. As a result, we conclude that the circuit court
did not erroneously exercise its discretion and we affirm the
court of appeals.
IV. CONCLUSION
¶78 We conclude that neither Cummings nor Smith
unequivocally invoked the right to remain silent during their
interrogations. As a result, the circuit court properly denied
each defendant's motion to suppress the incriminating statements
made to police. We also conclude that Cummings' sentence was
not unduly harsh. We therefore affirm the court of appeals in
both cases.
28
Nos. 2011AP1653-CR & 2012AP520-CR
By the Court.—The decisions of the court of appeals are
affirmed.
29
No. 2011AP1653-CR & 2012AP520-CR.dtp
¶79 DAVID T. PROSSER, J. (concurring in part, dissenting
in part). In these cases, two defendants claim that they
effectively asserted their right to remain silent. The majority
concludes that both defendants failed. Majority op., ¶4. I
agree with the majority that Carlos Cummings failed to
unequivocally invoke his Fifth Amendment1 right to remain silent
after receiving a Miranda2 warning, majority op., ¶4, and I join
the majority opinion with respect to its Cummings analysis.
However, I do not agree with the majority's conclusion that
Adrean Smith (Smith) did not unequivocally invoke his right to
remain silent when he said, "I don't want to talk about this."
Accordingly, with respect to Adrean Smith, I respectfully
dissent.
¶80 Detective Travis Guy (Detective Guy) of the Milwaukee
Police Department conducted an interrogation of Smith regarding
armed robberies that involved a stolen van. The majority quotes
the exchange in paragraph 31. After Smith initially waived his
Miranda rights, he talked briefly about the stolen van and then
said, "That's pretty much all I can say."
¶81 Detective Guy proceeded to talk about an armed
robbery, and Smith responded by saying, "See, I don't want to
talk about, I don't want to talk about this." He also said, "I
don't even want to talk about——I don't know nothing about this,
1
"No person shall be . . . compelled in any criminal case
to be a witness against himself . . . ." U.S. Const. amend. V.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
1
No. 2011AP1653-CR & 2012AP520-CR.dtp
see. I'm talking about this van. . . . So, I don't want to
talk about this."
¶82 Detective Guy responded, "I got a right to ask you
about it." Detective Guy then continued to question Smith.
¶83 Detective Guy did not have "a right" to question Smith
after Smith said he did not want to talk. The detective's
statement to the contrary undercut the defendant's
constitutional right to remain silent.3 Despite initially
informing Smith that he had "the right to stop the questioning
or remain silent at any time [he] wish[ed]," Detective Guy
ignored a clear statement that Smith did not want to talk.
¶84 The majority concludes that Smith's statements were
equivocal because, although he said "I don't want to talk about
this" four times, according to the majority, it was unclear
whether "this" was referring to the van, the robberies, or the
interrogation in general. Majority op., ¶63. I disagree. True
confusion can be remedied with follow-up questions. Even if not
required, clarifying questions reduce the risk that further
inquiry will violate the suspect's constitutional rights when an
officer truly believes a suspect's statement was ambiguous.
¶85 The statements in this case are not appreciably
different from the statements in State v. Goetsch, 186
3
An officer's assertion of authority in response to a
defendant's assertion of a constitutional right is troubling
when the asserted authority contradicts the right. See State v.
Wantland, 2014 WI 58, ¶27, ___ Wis. 2d ___, ___ N.W.2d ___
(Prosser, J., dissenting). When Detective Guy asserted that he
had a right to question Smith, he effectively precluded Smith
from asserting his right to end questioning.
2
No. 2011AP1653-CR & 2012AP520-CR.dtp
Wis. 2d 1, 7, 519 N.W.2d 634 (Ct. App. 1994). In Goetsch, the
defendant said, "I don't want to talk about this anymore. I've
told you, I've told you everything I can tell you. You just ask
me any questions and I just want to get out of here. Throw me
in jail, I don't want to think about this." Id. Despite the
fact that Goetsch continued to speak after he said he did not
want to talk, the court of appeals determined that he had
invoked his right to remain silent. Id. at 7-9.
¶86 Like Goetsch, Smith told his interrogator that he had
given all the information he had. Smith's statement——"I don't
want to talk about this"——is identical to one of Goetsch's
statements. Id. at 7. Thus, there is no basis for the
different result in the present case.
¶87 The Supreme Court said that a defendant may invoke the
right to cut off questioning by saying "that he want[s] to
remain silent or that he [does] not want to talk with the
police." See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010).
When Smith said, "I don't want to talk about this," he
unambiguously indicated that he did indeed not want to talk
anymore.
¶88 For the foregoing reasons, I respectfully concur in
part and dissent in part.
¶89 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurrence/dissent.
3
No. 2011AP1653-CR & 2012AP520-CR.ssa
¶90 SHIRLEY S. ABRAHAMSON, C.J. (dissenting).
"I don't want to talk about it." (Smith)
"Take me to my cell." (Cummings)
¶91 Miranda guides us in understanding a suspect's
invocation during interrogation of the right to remain silent:
"[I]f [a defendant] . . . indicates in any manner that he does
not wish to be interrogated, the police may not question him."1
¶92 Recently, the United States Supreme Court adopted the
Davis2 objective "unequivocal invocation" test for gauging a
defendant's invocation of the right to remain silent. See
Berghuis v. Thompkins, 560 U.S. 370 (2010).
¶93 The defendants and the State agree that
Davis/Thompkins governs the instant cases but express concern
that the court of appeals has not followed these Supreme Court
holdings.
¶94 Both defendant Cummings and the State agree, as do I,
that under the Davis "unequivocal invocation" test, the
determination of whether an invocation of a Miranda right is
unequivocal uses an objective standard. Whether a defendant has
unequivocally invoked a right is assessed by determining how a
reasonable police officer would understand the suspect's
1
Miranda v. Arizona, 384 U.S. 436, 445 (1966) (emphasis
added).
2
Davis v. United States, 512 U.S. 452 (1994).
1
No. 2011AP1653-CR & 2012AP520-CR.ssa
statement in the circumstances.3 Defendant Cummings and the
State agree that certain language in State v. Ross, 203
Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996), referring to the
suspect's subjective intent, is problematic under
Davis/Thompkins.
¶95 The State explicitly asks the court to disavow
language in Ross referring to the suspect's intent, language
that has been cited in other court of appeals decisions. The
State's request is framed as follows:
The State agrees with Cummings that language in Ross
referring to the suspect's subjective intent is
problematic. As Cummings observes, the test in Davis
(and Thompkins) is objective: whether a suspect has
unequivocally invoked his or her rights under Miranda
is "an objective inquiry that 'avoid[s] difficulties
of proof and . . . provide[s] guidance to officers' on
how to proceed in the face of ambiguity." Thompkins,
560 U.S. at 381-82 (quoting Davis, 512 U.S. at 458-
59). To the extent that Ross suggests that courts and
police must consider a suspect's subjective intent, as
well as his or her statements and non-verbal cues, in
determining whether an unequivocal invocation has been
made, Ross is inconsistent with Davis and Thompkins.
The State asks the court to address this issue in its
opinion, and explicitly disavow language in Ross
referring to the suspect's intent, which was also
cited in [State v.] Markwardt, [2007 WI App 242,] 306
Wis. 2d 420, ¶28, [742 N.W.2d 546,] and [State v.]
3
In addressing the unequivocal invocation test of whether a
suspect seeks to invoke his or her right to counsel, the Court
explained: "Although a suspect need not 'speak with the
discrimination of an Oxford don,' . . . he must articulate his
desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand
the statement to be a request for an attorney." Davis, 512 U.S.
at 459 (quoted source omitted).
2
No. 2011AP1653-CR & 2012AP520-CR.ssa
Hampton, [2010 WI App 169,] 330 Wis. 2d 531, ¶46[, 793
N.W.2d 901].4
¶96 The majority opinion relies on Ross and Markwardt,5
citing the cases frequently. The majority opinion does not,
however, clarify Ross in the manner requested by both the State
and Cummings.
¶97 The majority opinion, dwelling on the suspect's
subjective motives, seems to apply a subjective "unequivocal
invocation test," contrary to the holdings of the United States
Supreme Court in Davis and Thompkins. I think federal district
court Judge Griesbach got it right in Saeger v. Avila, 930 F.
Supp. 2d 1009 (E.D. Wis. 2013), overturning an unpublished court
of appeals decision.6
¶98 The federal court stated that the Wisconsin court of
appeals "found that while Saeger's actual words were clear, he
did not really mean them." The Saeger court concluded that "if
this reasoning [of the court of appeals] 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." Saeger, 930 F. Supp. 2d at 1015-16.
¶99 Saeger correctly stands for the proposition that a
court should look to the words the suspect uses in the context
in which they were spoken, but that a court cannot manufacture
4
Brief of Plaintiff-Respondent and Supplemental Appendix at
12-13.
5
State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742
N.W.2d 546.
6
State v. Saeger, No. 2009AP133-CR, unpublished slip op.
(Wis. Ct. App. Aug. 11, 2010). Saeger was a habeas case.
3
No. 2011AP1653-CR & 2012AP520-CR.ssa
ambiguity "by examining a suspect's possible motive . . . ."
Saeger, 930 F. Supp. 2d at 1019.
¶100 The majority opinion seems to assert that the
defendants did not mean what they said.7
¶101 In addition to arguably employing the wrong test, the
majority opinion finds equivocation where, in my opinion, none
exists and ignores the plain meaning of the defendants' requests
in both cases. The majority opinion's application of the
"unequivocal invocation" test to the two instant cases, whether
as a subjective or objective test, ignores the reality of
colloquial speech.
¶102 In the end, I conclude that a reasonable person would
understand that "I don't want to talk about this" and "take me
to my cell" mean the conversation is at an end.
¶103 As the law currently stands, law enforcement officers
are encouraged but not required to ask clarifying questions,8 and
courts are encouraged to resist creating ambiguity in
straightforward statements. In both Smith and Cummings, had the
officers viewed the statements at issue as unclear and asked
7
Majority op., ¶¶54, 58-59, 62 (speculating that Cummings
was "fencing" with his interrogator and that Smith was
professing his innocence).
8
Davis, 512 U.S. at 461 ("Of course, when a suspect makes
an ambiguous or equivocal statement it will often be good police
practice for the interviewing officers to clarify whether or not
he actually wants an attorney.")
4
No. 2011AP1653-CR & 2012AP520-CR.ssa
clarifying questions, appellate review in the court of appeals
and in this court might have been avoided.9
¶104 Although neither the State nor the defendants
challenge the use of the Davis/Thompkins rule, I do.
¶105 I commented on the shortcomings of the "unequivocal
invocation" test in my dissent in State v. Subdiaz-Osorio in the
context of invoking one's Miranda right to counsel10 and in my
dissent in State v. Wantland in the context of withdrawal of
consent to a search.11 These comments apply to the present cases
relating to invocation of a suspect's Miranda right to remain
silent.
¶106 Because it is so difficult to find a clear,
discernable, bright line between equivocal and unequivocal
statements, courts employ "selective literalism," sometimes
viewing a suspect's language as unequivocal, other times
requiring very clear language.12
9
The interrogating officer in Smith did not merely fail to
ask clarifying questions; he erroneously stated, "I got a right
to ask you about it," asserting his authority and undercutting
the defendant's constitutional right to remain silent. Accord
State v. Wantland, 2014 WI 58, ¶¶81-82, ___ Wis. 2d ___, ___
N.W.2d ___ (Abrahamson, C.J., dissenting) (concluding that an
officer cannot cut off a defendant's opportunity to refuse to
give consent to a search by erroneously asserting legal
authority).
10
State v. Subdiaz-Osorio, 2014 WI 87, ¶¶___, ___
Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting).
11
State v. Wantland, 2014 WI 58, ¶¶84-91, ___ Wis. 2d ___,
___ N.W.2d ___ (Abrahamson, C.J., dissenting).
12
Marcy Strauss, Understanding Davis v. United States, 40
Loyola L.A. L. Rev. 1011, 1062 (citing Peter M. Tiersma &
Lawrence M. Solan, Cops and Robbers: Selective Literalism in
American Criminal Law, 38 Law & Soc'y Rev. 229, 256 (2004)).
5
No. 2011AP1653-CR & 2012AP520-CR.ssa
¶107 As I wrote in my dissents in Subdiaz-Osorio and
Wantland, the "unequivocal invocation" test invites equivocation
on the part of courts and has led to inconsistent, subjective
results in the case law.
¶108 Inconsistencies are glaringly apparent in courts' use
of the "unequivocal invocation" test in the context of the right
to counsel. Comparing statements that have been deemed
"unequivocal" by a court with those that have been deemed
"equivocal" reveals an unsettling arbitrariness. For instance,
one court deemed "Can I call my lawyer?" equivocal, whereas
another deemed "Can I have my lawyer present when [I tell you my
story]?" unequivocal.13
¶109 I agree with Justice Sotomayor's dissent in the recent
5-4 Thompkins decision, which comments on the weaknesses of the
"unequivocal invocation" test in evaluating a suspect's
statements as follows:
The Court asserts in passing that treating ambiguous
statements or acts as an invocation of the right to
silence will only marginally serve Miranda's goals.
Experience suggests the contrary. In the 16 years
since [Davis v. United States, 512 U.S. 452, 461
(1994)] was decided, ample evidence has accrued that
criminal suspects often use equivocal or colloquial
language in attempting to invoke their right to
silence. A number of lower courts that have
(erroneously, in my view) imposed a clear-statement
requirement for invocation of the right to silence
have rejected as ambiguous an array of statements
whose meaning might otherwise be thought plain. At a
13
Dormire v. Wilkinson, 249 F.3d 801, 805 (8th Cir. 2001);
Taylor v. State, 553 S.E.2d 598, 601-02 (Ga. 2001).
For a survey of statements that have and have not been
deemed equivocal, see Strauss, supra note 12, at 1061-62.
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minimum, these decisions suggest that differentiating
"clear" from "ambiguous" statements is often a
subjective inquiry.14
¶110 Because the majority opinion fails to uphold the broad
protection mandated by Miranda and undermines the core principle
of protecting the defendants' Fifth Amendment right against
compelled self-incrimination, I dissent.
14
Berghuis v. Thompkins, 560 U.S. 370, 410-11 (2010)
(Sotomayor, J., dissenting) (internal quotation marks, citation,
and footnote omitted).
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