State v. Marchand Grady
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2009 WI 47 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP672-CR State of Wisconsin, Plaintiff-Respondent, v. Marchand Grady, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS (no cite) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: June 11, 2009 November 6, 2008 Circuit Milwaukee Charles F. Kahn, Jr. JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Carl W. Chesshir, Eagle, and oral argument by Carl W. Chesshir. For the plaintiff-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. 2009 WI 47 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP672-CR (L.C. No. 2005CF2809) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 11, 2009 v. David R. Schanker Clerk of Supreme Court Marchand Grady, Defendant-Appellant-Petitioner. REVIEW of an opinion and order of the court of Appeals. Affirmed ¶1 MICHAEL J. GABLEMAN, J. This is a review of an unpublished decision of the court of appeals1 summarily affirming the entry of a judgment of conviction by the Circuit Court for Milwaukee County, Charles F. Kahn, Judge, against Marchand Grady ("Grady"). Grady was convicted of first-degree intentional homicide while armed with a dangerous weapon as a party to a crime, possession of a short-barreled shotgun as a party to a crime, and possession of a firearm by a felon. 1 Grady contends State v. Grady, No. 2007AP672-CR, unpublished order (Wis. Ct. App. Jan. 28, 2008). No. 2007AP672-CR that the circuit court erred by denying his motion to suppress inculpatory statements that he made to police officers while in custody. The court of appeals disagreed and upheld the denial of Grady's motion. ¶2 The issue we decide today is whether Grady's Fifth Amendment rights were violated when Miranda2 warnings were given to him before the start of his noncustodial interrogation, but not administered again after his interrogation became custodial during the same interview two-and-one-half hours later. argues that he rights after those was warnings his entitled to interrogation were not be readvised became Grady of his Miranda custodial, and because readministered, his inculpatory statements should have been suppressed. ¶3 We reiterate reject that Grady's the bright-line proper rule and for framework approach, analyzing the sufficiency of the timing of Miranda warnings is a totality of the circumstances test. In this case, we hold that Grady was not entitled to a readministration of the Miranda warnings after he was arrested. The evidence shows that Grady was read his Miranda only warnings commencement there was of no the two-and-one-half custodial significant portion change in hours of prior his the to the interrogation, nature of his interrogation after it became custodial, Grady showed no signs of mental impairment, he was familiar with Miranda warnings from his past, and, though not readministered, Grady was reminded of his Miranda rights after he was taken into custody. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 2 In sum, it No. 2007AP672-CR is clear that the Miranda warnings as administered made Grady sufficiently aware of his rights during questioning. motion to suppress his inculpatory statements was Grady's therefore appropriately denied by the circuit court, and we affirm the decision of the court of appeals upholding that denial. I. ¶4 BACKGROUND The underlying facts are undisputed. On May 16, 2005, Allen Jemison was found dead in his apartment as the result of two shotgun wounds. Jemison's roommate, Marcus Ward, immediately became the subject of the police investigation. The police also made contact with Grady, who reported that he knew Ward. Grady agreed to call the police if and when he saw Ward. Later that evening, Grady did call the police and assisted them in finding Ward. station and Grady then voluntarily went to the police agreed to answer some questions. The police repeatedly told Grady that he was not under arrest; he was not handcuffed during the ride to the station or once he arrived at the station. Grady was provided with food, water, cigarettes, and bathroom breaks throughout the ensuing questioning. ¶5 At 8:16 p.m., Detective Corbett began the interview by administering Miranda warnings to Grady so as to be "better safe than sorry," and Grady indicated that he understood the rights he was read. Grady had received Miranda warnings on at least one prior unrelated occasion. hours, Grady Gastrow, answered denying For the next two-and-one-half questions any involvement from in Detectives Jemison's Corbett death. undisputed that Grady was not in custody at this time. 3 and It is No. 2007AP672-CR ¶6 At approximately 10:45 p.m. that evening, Ward, who was being questioned separately, told the police that Grady was the person who shot and killed Jemison. was placed under readministered to arrest. Grady At this point, Grady Miranda upon his warnings arrest, were Grady though not did testify at the hearing on his motion to suppress that, when he was arrested, Detective Gastrow slid a card to him across the table with the Miranda warnings printed on it and asked Grady if he knew the rights referenced therein. Grady claimed that he looked at the card and slid it back to Gastrow, who picked it up and put it away. Neither party alleges that this episode constituted an administration of the Miranda warnings. ¶7 From 10:45 p.m. on May 16 until 5:25 a.m. on May 17, Detectives Corbett and interrogation of Grady. Grady began making Gastrow conducted a custodial At some point prior to 12:25 a.m., inculpatory statements regarding his involvement in Jemison's death. The detectives suspended the interrogation between 12:25 and a.m. brief the incoming shift of officers. 12:55 a.m. in order to Detectives Corbett and Gastrow then resumed their custodial interrogation of Grady, who continued to make inculpatory statements. Detective Corbett spent several hours during the interrogation reducing Grady's statement to writing. While Grady declined to sign the statement, he orally acknowledged that it was true and correct. ¶8 Grady was booked into detention immediately following the conclusion of the interrogation on the morning of May 17, 2005. In total, Grady s all-night 4 questioning (the "first No. 2007AP672-CR interrogation") lasted slightly more than nine hours, with the noncustodial portion composing the first two-and-one-half hours of the interrogation. cigarettes, water, and Grady continued restroom breaks to receive throughout food, the first interrogation. ¶9 another Later that night, Detectives Corbett and Gastrow began round of questioning (the "second interrogation") clarify inconsistencies from the first interrogation. to It is undisputed that this second custodial interrogation began with Detective Corbett administering the Miranda warnings to Grady, who stated that he remembered being read his rights the previous day, understood them, and was willing to speak to the police without an attorney. p.m. until inculpatory written 11:17 Grady spoke with the detectives from 7:33 p.m., statements. statement based during which Detective upon Corbett Grady's indicated was true and correct. he made additional prepared answers, another which Grady Grady then initialed each page and signed the statement. ¶10 Prior to trial, Grady moved to suppress the statements he made and signed during the interrogations on the grounds that they were the involuntary products of police coercion. The circuit court found the statements to be voluntary and denied the motion, stating that Grady understood his rights, and that he "knew exactly what he was doing and was not the subject of improper police coercion when he provided the information to the police." 5 No. 2007AP672-CR ¶11 into At trial, evidence both during of the Grady's State's statements were admitted case-in-chief. The jury returned guilty verdicts on all three counts, and the circuit court correspondingly entered a judgment of conviction on all three counts. ¶12 Grady appealed motion to suppress. improperly the circuit court's denial of his On appeal, Grady conceded that he was not coerced by the police, but maintained that his statements should be suppressed because he was not given his Miranda warnings after he was placed into custody. The court of appeals judgment summarily conviction, affirmed rejecting the Grady's circuit argument court's "that Miranda of warnings have no effect simply because officers take the precaution of reading Miranda rights before they are required." The court of appeals concluded: the court's findings understood voluntary and and "[T]he that the record the amply Miranda postcustodial intelligently supports admonitions statement given." Grady by then circuit were fully Grady sought was review before this court. II. APPLICABLE LEGAL STANDARDS ¶13 circuit In reviewing court's erroneous, and a findings review motion of the to fact suppress, unless application principles to those facts de novo. they of uphold are the clearly constitutional See State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. 6 we No. 2007AP672-CR ¶14 The Fifth Amendment to the United States Constitution guarantees the privilege against compelled self-incrimination,3 and the Fourteenth Amendment requires state courts to observe this privilege. United States protect the See Malloy v. Hogan, 378 U.S. 1, 6 (1964). Supreme right Court created against procedural compelled The safeguards self-incrimination to in Miranda v. Arizona, holding as follows: [W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning . . . [h]e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. 384 U.S. 436, constitutional 478-79 (1966). safeguards Failure renders inadmissible against that person. the to comply person's with these statements Id. III. DISCUSSION ¶15 Grady advances a creative, but not heretofore unheard of argument. He asks us to adopt a bright-line rule requiring the administration of Miranda warnings after a person is placed in official custody, and asks us to declare any and all Miranda 3 The Fifth Amendment provides in pertinent part: "No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. 7 No. 2007AP672-CR warnings prior to custody unpersuaded that a desirable, and determining whether facto bright-line reiterate a ineffective.4 rule ipso is that suspect the has We necessary are even approach proper or for effectively received Miranda warnings is a totality of the circumstances test. his Grady did receive the requisite Miranda warnings at the beginning of his noncustodial interrogation, and in light of the facts of this case, we readminister do not those believe warnings the once police his were required to interrogation became this because Miranda custodial two-and-one-half hours later. A. Totality of the Circumstances Test ¶16 Grady's warnings are argument required is basically before a custodial interrogation commences, and are not required for noncustodial interrogations, Miranda warnings are placed in custody. inaccurate effective after a person has been In our opinion, this argument constitutes an interpretation poor public policy. only of the requirements of Miranda and We do not find much merit in this approach, and neither have the overwhelming majority of other courts who have considered this question. A sound interpretation of Miranda and sound public policy require the application of the totality of the circumstances test rather than a bright-line rule, and that is what we do here. 4 The Miranda court repeatedly referred to the valid and legally sufficient advisement of a suspect's constitutional rights as an "effective" advisement or warning. See, 384 U.S. at 467, 470, 473, 494, 498. We use the terms "effective" and "ineffective" in this same sense. 8 No. 2007AP672-CR ¶17 The United States Supreme Court has made clear its reluctance to warnings. Instead of delineating bright-line rules, the Supreme Court embraced has consider the adopt per a se more totality of rules in the flexible the context approach of Miranda whereby circumstances. See courts Wyrick v. Fields, 459 U.S. 42, 47-49 (1982) (per curiam) (rejecting a per se rule that Miranda rights be readministered before questioning a suspect about reiterating that the results the proper of a polygraph framework is a examination, and totality the of circumstances inquiry). ¶18 Grady nonetheless argues that his bright-line rule is required by Miranda. administration of the It is true that Miranda necessitates the warnings only after precustodial warnings are not required. at 478-79. custody, and that See Miranda, 384 U.S. This plainly does not mean, as Grady contends, that Miranda warnings before custody are per se ineffective. The Miranda opinion sets no requirement as to the earliest time that the warnings may be given; it requires only that the warnings be given at some time "prior to any [custodial] questioning." Id.; see also, State v. Burge, 487 A.2d 532, 543 (Conn. 1985) ("The disclosure that Miranda requires must be made no later than the time when an accused is taken into custody." emphasis added). Grady's argument, then, trips on its own logic. Miranda warnings are required before the The fact that commencement of a custodial interrogation does not mean that precustodial warnings are always ineffective. 9 No. 2007AP672-CR ¶19 Numerous other jurisdictions have considered this same question, and all but one have rejected Grady's approach.5 The weight of authority, indeed the overwhelming consensus, agrees that precustodial administration of Miranda warnings can be sufficient under certain circumstances.6 5 The only case we were able to find where a court did create a bright-line rule deeming all precustody Miranda warnings per se ineffective is State v. Bradshaw, 457 S.E.2d 456 (W. Va. 1995). As our opinion today makes clear, we do not find the reasoning in Bradshaw persuasive. 6 See, e.g., Guam v. Dela Pena, 72 F.3d 767, 770 (9th Cir. 1995) (holding that precustodial Miranda warnings were sufficient when the defendant confessed 15 hours later and did not allege that anything diminished the effectiveness of the warnings other than the passage of time); Jarrell v. Balkcom, 735 F.2d 1242, 1253-54 (11th Cir. 1984) (holding that precustodial Miranda warnings were sufficient when the defendant confessed less than four hours after the warnings and there was no evidence that the defendant was unaware of his rights, that he was pressured, or that he did not understand the interrogation process); Upton v. State, 36 S.W.3d 740, 743-44 (Ark. 2001) (holding that precustodial Miranda warnings were sufficient when the defendant was questioned by the same officer after arrest, confessed within two hours of being given the warnings, and there was no evidence that the defendant did not understand the warnings); State v. Burge, 487 A.2d 532, 542-43 (Conn. 1985) (holding that precustodial Miranda warnings were sufficient when the defendant was mentally aware, "continuously in the company of the police, questioned on the same subject by the same officers throughout that time, and confessed within four hours of having been given the warnings"); State v. Tolbert, 850 A.2d 1192, 1200 (Md. 2004) (holding that the precustodial Miranda warnings were "sufficiently proximate in time and place to custodial status to inform" the defendant of his constitutional privilege against self-incrimination, and thus readministration of the rights was not required); Commonwealth v. Colby, 663 N.E.2d 808, 810-11 (Mass. 1996) (holding that precustodial Miranda warnings were sufficient when given less than two hours prior to the defendant's confession and there was no break in the interrogation process); State v. Monroe, 711 A.2d 878, 886-87 (N.H. 1998) (holding that defendant's pre-polygraph, precustodial Miranda warnings sufficiently safeguarded his rights where defendant's "conduct 10 No. 2007AP672-CR ¶20 Though the precise framing of the analysis varies from state to state, the general approach is the same. The main thrust of the inquiry is whether the suspect being questioned was sufficiently aware of his or her rights during the custodial interrogation. Though still under a "totality of the circumstances" rubric, courts have considered multiple factors in making this determination,7 including whether the same officer gave no indication that his comprehension and volition had been affected so as to render the warning ineffective," and where interrogation did not become significantly more coercive); State v. Dispoto, 913 A.2d 791, 801 (N.J. 2007) (holding that no further warnings were required when "precustodial warnings have been given to a defendant as part of a continuing pattern of interactions between the defendant and the police, and during that continuing sequence of events nothing of an intervening nature occurs that would dilute the effectiveness of the warnings that had been given"); State v. Rogers, 188 S.W.3d 593, 606-08 (Tenn. 2006) (holding that no new administration of Miranda rights was required when there was a five-hour lapse between defendant's waiver of his Miranda rights and the confession, where the same two officers conducted the precustodial and postcustodial questioning, where the subject matter remained the same throughout, where the defendant was familiar with the criminal justice system, and where nothing indicates the confession was involuntary); State v. Rupe, 683 P.2d 571, 581 n.4 (Wash. 1984) (holding that precustodial Miranda warnings were sufficient in light of the short period of time between advisement of his rights and being placed in custody); see also 2 Wayne R. LaFave, Criminal Procedure § 6.8(b), at 807 nn.62-63 (3d ed. 2007) (citing Burge and other cases for the proposition that precustodial Miranda warnings may be sufficient). 7 For approach: example, Tennessee has proffered the following Factors to be considered when assessing the totality of the circumstances include: (1) the amount of time that has passed since the waiver; (2) any change in the identity of the interrogator, the location of the interview, or the subject matter of 11 No. 2007AP672-CR or officers changed, conducted whether the the questioning, subject matter whether of the the location questioning was consistent, whether a reminder of the Miranda rights was given before the custodial interrogation began, whether the suspect was mentally or emotionally impaired, whether more coercive tactics were used when the suspect was placed in custody, the suspect's past experience with law enforcement, and how much time elapsed between the administration of the Miranda warnings and the custodial interrogation or confession. The Miranda warnings would tend to go "stale" sooner, that is, they would be more likely to be forgotten by the suspect, if the suspect has had little familiarity with the warnings than if the suspect has had experience with the warnings. ¶21 factors We do not here adopt any formulaic test. are helpful, but determinative or exhaustive. not individually or The above collectively We prefer a flexible approach that examines all relevant facts in an effort to determine whether a the questioning; (3) any official reminder of the prior advisement; (4) the suspect's sophistication or past experience with law enforcement; and (5) any indicia that the suspect subjectively understands and waives his rights. Rogers, 188 S.W.3d at 606 (citing People v. Mickle, 814 P.2d 290, 305 (Cal. 1991)). The Eleventh Circuit inquires into whether the suspect was aware of his rights, pressured, or "mentally deficient or naive about the process that was under way." Jarrell, 735 F.2d at 1254. Connecticut similarly asks whether the warnings given were "sufficiently proximate in time and place to custodial status to serve as protection" against coercion. Burge, 487 A.2d at 543. 12 No. 2007AP672-CR suspect was sufficiently aware of his or her constitutional rights. ¶22 Another problem with Grady's bright-line approach is that it does not align with the purpose of Miranda warnings. Miranda warnings custody aware of are designed his or to her make a suspect constitutional who rights is in before interrogation, and relatedly, to inform the suspect that the interrogators will recognize his or her rights if exercised. Miranda, 384 U.S. at 468; see also Hughes v. Commonwealth, 87 S.W.3d 850, 854 (Ky. 2002). The goal is to protect the privilege against self-incrimination, or said another way, to ensure that a confession is free and unconstrained. See State v. N.W.2d 48 Hambly, (noting 2008 that officials WI 10, Miranda from using ¶48, is the 307 Wis. 2d 98, designed coercive to nature 745 prevent of "government confinement to extract confessions that would not be given in an unrestrained environment") 280-81, 423 (quoting N.W.2d 862 State v. (1988)). Cunningham, As the 144 Wis. 2d 272, Connecticut Supreme Court has noted: The purpose of Miranda warnings is to assure that a confession is "the product of an essentially free and unconstrained choice by its maker." No such choice is "free and unconstrained" unless the accused, before making statements to the police, is aware that he has the constitutional right to remain silent. Adequate disclosure of the jeopardy in which the accused is being placed is therefore important to alert him to 13 No. 2007AP672-CR the importance of the constitutional rights which he is being asked to forego. Burge, 487 A.2d at 542-43 (citations omitted). ¶23 Given this purpose, a rule that assumes a suspect is a blank slate with no awareness of his or her rights as soon as he or she is placed in custody is a head-in-the-sand approach. In addition, application of Grady's bright-line rule would focus the analysis on the custody status of a suspect rather than on the individual's comprehension and waiver of his rights. in short, form over substance. It is, A rule that says warnings given one minute before custody are ineffective per se because they were not given when the suspect was actually in custody is manifestly unreasonable. ¶24 Finally, beyond its lack of fidelity to the purposes and principles behind Miranda, Grady's approach is unworkable. One of its major flaws is that it assumes that the precise point of custody is fixed and known at the time of questioning. While this may sometimes be the case, it is not always true. In practice, it is not always clear when a suspect is officially under arrest. conducting a headquarters, precise See Burge, 487 A.2d at 543 ("When the police are good faith they moment may when precustodial have investigation difficulty questioning in turns indeterminacy, officers currently have police determining into interrogation and Miranda warnings are required."). this at an the custodial Because of incentive to provide early warnings in order to ensure both maximum awareness of rights and the admissibility of subsequent statements. Grady's rule might have the perverse effect of eliminating the 14 No. 2007AP672-CR "better safe than sorry" approach, leading to suspects who are less apprised of their rights than under the current system. ¶25 Grady s bright-line rule, then, must be rejected. policies and purposes approach that examines underlying the Miranda totality of require the a The flexible circumstances to determine the sufficiency of Miranda warnings. B. Application to the Facts of This Case ¶26 In view of the totality of the circumstances in the case at bar, it is clear that Grady was not denied his Fifth Amendment rights. Grady was questioned by the same officers, in the same place, on the same subjects during his precustodial and postcustodial interrogation. His postcustodial interrogation was merely a continuation of the precustodial questioning, the only differences being his formal arrest and new status as a suspect in the homicide. ¶27 that There is also no evidence in the record to suggest the questioning became arrested. In fact, the cooperative and voluntarily more record coercive indicates conversational.8 once Grady He Grady was remained was given frequent breaks and food both before and after he was arrested. 8 Our discussion of voluntariness is not meant to implicate the type of voluntariness discussed in State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965). Though they are related, Goodchild considers the voluntariness of statements obtained through physical and psychological coercion. Grady initially alleged this type of coercion, but abandoned these claims on appeal. Miranda is concerned with a suspect's awareness of his or her rights. In this inquiry, as discussed above, whether the interrogation became more coercive is a factor to be considered in evaluating whether the suspect was aware of his or her rights and voluntarily waived them. 15 No. 2007AP672-CR ¶28 Additionally, we have no indication that Grady was impaired in any way, or any suggestion that his comprehension of his rights was statements. diminished when he made his inculpatory The time factor here, a mere two-and-one-half hours between the Miranda warnings and his arrest, also supports his awareness of his rights. Grady, having been given Miranda warnings on at least one other separate occasion, understood what was at stake. He was even reminded of his rights in an informal way at the beginning of his custodial interrogation the Miranda card that had been read to him earlier was shown to him again (though not read). ¶29 Based circumstances upon that these would facts, have Miranda warnings ineffective. we rendered see no Grady's intervening precustodial We conclude there is no evidence to support the notion that Grady's inculpatory statements were made without being sufficiently aware of his rights. regret his admissions, self-accusation Fifth Amendment [or but "[a]bsent unknowing or privilege damning admissions." is not some officially unintelligent violated Grady may by coerced waiver], even the the most United States v. Washington, 431 U.S. 181, 187 (1977) (emphasis omitted). Grady knew and understood his rights before he was arrested mid-interrogation. knew and understood his rights after his arrest. Grady still Nothing in the record demonstrates any diminishment of that understanding. ¶30 Therefore, the inculpatory statements made during Grady's first interrogation were not obtained in violation of Grady's Fifth Amendment rights. In light of this conclusion, we 16 No. 2007AP672-CR need not address Grady's argument that the inculpatory statements he made during his second interrogation should be suppressed as well. IV. ¶31 We reiterate reject that CONCLUSION Grady's the bright-line proper rule and for framework approach, analyzing the sufficiency of the timing of Miranda warnings is a totality of the circumstances test. In this case, we hold that Grady was not entitled to a readministration of the Miranda warnings after he was arrested. The evidence shows that Grady was read his Miranda only warnings commencement there was of no the two-and-one-half custodial significant portion change in hours of prior his the to the interrogation, nature of his interrogation after it became custodial, Grady showed no signs of mental impairment, he was familiar with Miranda warnings from his past, and, though not readministered, Grady was reminded of his Miranda rights after he was taken into custody. In sum, it is clear that the Miranda warnings as administered made Grady sufficiently aware of his rights during questioning. motion to suppress his inculpatory statements was Grady's therefore appropriately denied by the circuit court, and we affirm the decision of the court of appeals upholding that denial. By the Court. The opinion and order of the court of appeals is affirmed. 17 No. 2007AP672-CR 1
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