State v. Cummings
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In these two cases, State v. Cummings and State v. Smith, the court of appeals affirmed the orders of the circuit courts denying Defendants’ motions to suppress. Defendants appealed, contending that they unequivocally invoked the right to remain silent prior to making incriminating statements to the police, and therefore, their statements should have been suppressed. Cummings argued separately that his sentence was unduly harsh. The Supreme Court affirmed the court of appeals in both cases, holding (1) neither Cummings nor Smith unequivocally invoked the right to remain silent during their interrogations, and therefore, the circuit court properly denied each Defendant’s motion to suppress; and (2) Cummings’ sentence was not unduly harsh.
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2014 WI 88 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP1653-CR & 2012AP520-CR 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 App. 2013 Unpublished) ----------------------------------------------REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 346 Wis. 2d 280, 827 N.W.2d 929 (Ct. App. 2013 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCUR/DISSENT: DISSENTED: NOT PARTICIPATING: July 24, 2014 March 19, 2014 Circuit/Circuit Portage/Milwaukee Thomas T. Flugaur/Thomas P. Donegan PROSSER, BRADLEY, JJ., concurs in part, dissents in part. (Opinion filed.) ABRAHAMSON, C.J., dissents. (Opinion filed.) 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, FILED Plaintiff-Respondent, 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. ¶1 two per ANNETTE KINGSLAND ZIEGLER, J. curiam decisions of the court Affirmed. This is a review of of appeals, State v. Cummings, No. 2011AP1653-CR, unpublished slip op. (Wis. Ct. App. Jan. 10, 2013), and State v. Smith, No. unpublished slip op. (Wis. Ct. App. Jan. 23, 2013). 2012AP520-CR, 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 result, their suppressed. Both Smith and Cummings argue that, as a incriminating statements should have been 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. made to police. 2011AP1653-CR & 2012AP520-CR 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. the scene, officers found the victim, On arriving at 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 asked him to meet her at the park. Dietze had called him and 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 apartment and that evening, arrested police her. located Dietze Dietze admitted to at her 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 to Following the interrogation of Dietze, police returned Cummings' home and asked whether he would return to the station for further questioning. assured that he was still not in custody, be willing to After being Cummings agreed. Officers then transported Cummings back to the police station. ¶10 Following some preliminary advised of his Miranda rights. questions, Cummings was 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. Dietze. During that discussion the 2011AP1653-CR & 2012AP520-CR 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 [Dietze] telling us different? [CUMMINGS]: do we got Carla and 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. waste your time? Ya know? [OFFICER]: [CUMMINGS]: [OFFICER]: Why Cuz I'm hoping . . . If you got enough . . . . . . 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]: [CUMMINGS]: locked up. ¶11 The If who believes you? . . . and interrogation if continued they and don't, Cummings I get 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 that her husband would never grant her a She stated 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. ¶13 police 2011AP1653-CR & 2012AP520-CR On November 19, 2008, the day following the shooting, conducted a search of home.7 Cummings' The search uncovered a case and magazine for a .22 caliber Smith & Wesson pistol, and basement. five .22 caliber shell casings hidden in the 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. complaint charged Cummings with Attempted First The Degree Intentional Homicide As a Party to the Crime, contrary to Wis. Stat. §§ 939.05, 939.32, and 940.01(1) (2007-08),8 felony. a Class B 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. pursuant to Wis. Stat. § 939.62. 2011AP1653-CR & 2012AP520-CR 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. time? Why waste your 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 statement "Well, then, take me to my cell. time? that Cummings' Why waste your Ya know?" was not an unequivocal invocation of his right to remain silent. ¶19 On December Cummings' motion. 2, 2009, the court held a hearing on 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. 8 The court 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 suppress. silent, and therefore denied his motion to 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 agreed to dismiss In exchange for Cummings' plea, the State 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 to 24 On March 5, 2010, the circuit court sentenced Cummings 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. ¶23 On December 13, 2010, 2011AP1653-CR & 2012AP520-CR Cummings filed postconviction relief in the circuit court. a motion for 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 denied granted On July 1, 2011, the circuit court granted in part and in part the Cummings' portion of postconviction Cummings' motion motion. related The to court the DNA surcharge, but denied his request for resentencing or sentence modification. counsel had reduction The court rejected Cummings' claim that his trial been ineffective sentence. The for court failing concluded to request that, a given risk 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. ¶25 On conviction July and 15, the 2011, Cummings court's postconviction relief. 2011AP1653-CR & 2012AP520-CR denial appealed of his both his motion for 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 unequivocal invocation of his right to remain silent. not an 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." ¶9. Id., Because Cummings' statement was subject to a "reasonable competing inference" unambiguous. ¶28 the court concluded that it was not Id., ¶7 (citing Markwardt, 306 Wis. 2d 420, ¶36). 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. ¶29 2011AP1653-CR & 2012AP520-CR On February 15, 2013, Cummings petitioned this court for review, which we granted on December 17, 2013. B. State v. Smith ¶30 Milwaukee In late Police November Department 2010 Smith Detective was Travis interviewed Guy by ("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: Smith: about? What Hmmm? was the other thing that this is 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. Detective Guy: 2011AP1653-CR & 2012AP520-CR 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 here for the van. know nothing about this. I'm . . . 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 robberies]?" Smith "do you to tell me about Smith replied, "What I got to do with it? that got to do with me? continued to [the What I don't know nothing about no robbery, see, that's what I'm saying! Guy want ask I don't rob people." Smith for information, Detective 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, 13 contrary to Wis. Stat. 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. 939.63(1)(b), §§ 943.10(2)(e), a Class E 939.50(3)(e), felony; two 939.05, counts of and 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), felony. 939.50(3)(d), and 939.63(1)(b), a Class D 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. Smith's invocation of the right With respect to 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 adjudged him guilty. court accepted Smith's pleas and 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. concluded that Smith was not attempting to The court terminate the interview when he made his statements, but was rather indicating that he did questions. not wish Id., ¶9. to discuss one particular line of 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. ¶42 Id., ¶8. On February 21, 2013, Smith petitioned this court for review, which we granted on December 17, 2013. II. ¶43 Whether a STANDARD OF REVIEW person has invoked his or her remain silent is a question of constitutional fact. right to 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. ¶44 fact, "When this Robinson, presented court 2010 (citations findings engages WI 80, omitted). of upholding them (citations a in two-step a unless question 327 "First, fact constitutional inquiry." we review are a the 786 clearly v. N.W.2d 463 court's standard, erroneous." Id. independently apply we to facts." those State circuit deferential "Second, principles of Wis. 2d 302, under they omitted). constitutional with ¶22, historical 2011AP1653-CR & 2012AP520-CR Id. (citations omitted). ¶45 it "'We review a trial court's conclusion that a sentence imposed was not unduly harsh and erroneous exercise of discretion.'" unconscionable for an 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 articulation States rule," Supreme counsel. standard, was Court to sometimes originally govern called developed invocation the by of "clear the the United right See Davis v. United States, 512 U.S. 452 (1994). to 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. ¶50 Ross, 203 Wis. 2d at 70. 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 381-82 459). Berghuis further (citing confirmed Davis, 512 U.S. at that invocation standard is an objective test. the unequivocal 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." 306 Wis. 2d 420, ¶36 (citation omitted). such an required ambiguous to end or the equivocal Markwardt, If a suspect makes statement, interrogation . . . or "police ask are questions not to clarify whether the accused wants to invoke his or her Miranda 19 Nos. rights." 2011AP1653-CR & 2012AP520-CR Berghuis, 560 U.S. at 381 (citing Davis, 512 U.S. at 461-62). ¶52 "all Once a suspect has invoked the right to remain silent police questioning must cease unless the suspect later validly waives that right and 'initiates further communication' with the police." U.S. at (1981)). 473 74; Thus, Ross, 203 Wis. 2d at 74 (quoting Miranda, 384 Edwards the v. "key Arizona, question" 451 is U.S. 477, whether the 484 85 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. ¶54 We disagree. 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. statement could be read Cummings is correct that his literally: as a request that he be removed from the room because he was no longer interested in talking to the officers. his statement was a Another possibility, however, is that 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. interrogation, prove presumably fruitless because unless information to Cummings. the 2011AP1653-CR & 2012AP520-CR continued officer questioning provided would additional 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. op., ¶8. See Cummings, No. 2011AP1653, unpublished slip 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 unequivocal further invocation argues because that it was his very statement similar was to an 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. everything I can tell you. You just ask me any questions and I just want to get out of here. think about this." concluded that Throw me in jail, I don't want to Id. at 7. this I've told you, I've told you The court of appeals in Goetsch statement constituted invocation of the right to remain silent. ¶57 While the statement in an unequivocal Id. at 7-9. 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. statements. Cummings did not make any such additional Second, the suspect in Goetsch expressed that he 21 Nos. was exhausted, and he had 2011AP1653-CR & 2012AP520-CR 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 "reasonable competing inferences" as to its meaning. 306 Wis. 2d 420, ¶36. to any Markwardt, 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. "[t]hen put me in jail. In Markwardt the suspect Just get me out of here. to sit here anymore, alright. stated I don't want 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 inferences" appeals as to concluded was its that subject meaning. the to As "reasonable result, a suspect's competing court of not an statement the was unequivocal invocation of the right to remain silent, and thus did not serve to cut off questioning. ¶59 Cummings' statement "Well, then, take me to my cell. Why waste your time? period of Id. verbal back Ya know?" similarly occurred during a and forth between Cummings and the officers, and is thus similarly subject to reasonable competing 22 Nos. inferences. conclude As that a result Cummings' of these 2011AP1653-CR & 2012AP520-CR inferences, was statement competing an invocation of the right to remain silent. not we unequivocal 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. statement, involvement Detective in the Guy had theft of been the 23 asking minivan. Prior to Smith's Smith Smith about his had been 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 to Further, while "I don't want to talk about this" seems indicate a desire nothing about this" Smith's to is innocence. cut an Such off questioning, exculpatory a "I don't statement proclamation of know proclaiming innocence is incompatible with a desire to cut off questioning. ¶65 required Given the apparent confusion, and although he was not 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 willingness to answer questions. indicated a continued 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. 24 This stolen van. I 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 1988)). Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 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. fact that proclamations Smith's of statements innocence or could selective be The mere interpreted refusals to as 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 questioning. that police were required to cut off their 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." 25 State v. 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." ¶35 (citing State v. Wuensch, 69 N.W.2d 665 (1975)). Harbor, 333 Wis. 2d 53, Wis. 2d 467, 474, 480, 230 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 circumstances. modify a Among sentence those only under circumstances certain is if narrow "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, Wis. 2d 467; 273 State Wis. 2d 57, v. Ralph, 681 N.W.2d 524; 156 Wuensch, Wis. 2d 433, 438, 69 456 N.W.2d 657 (Ct. App. 1990)).14 ¶72 where A the sentence sentence is is unduly so harsh or excessive unconscionable and unusual "only 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. Ocanas v. State, 70 Wis. 2d 179, 2011AP1653-CR & 2012AP520-CR 185, 233 N.W.2d 457 (1975) (citations omitted). ¶73 argues confinement initial Cummings to supervision maximum was be unduly sentences" that his followed harsh. are sentence by 10 Cummings "deserving of of 14 years of asserts greater years extended that that "[s]uch sentences exercise of discretion." may be due to "near scrutiny sentences well within the normal statutory limits." claims the of than Cummings erroneous 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." 117 Wis. 2d 9, 22, 343 N.W.2d 411 Ocanas, 70 Wis. 2d at 185). (Ct. State v. Daniels, App. 1983) (citing 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.'" ¶85 (citation omitted). Further, Ninham, 333 Wis. 2d 335, 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. reasoning, reach." reached a result which a 2011AP1653-CR & 2012AP520-CR reasonable judge could 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 impose a Finally, while it is true that not every judge would 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. ¶78 We conclude CONCLUSION 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. not unduly harsh. We also conclude that Cummings' sentence was 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. ¶79 in DAVID T. PROSSER, J. part). In these cases, 2011AP1653-CR & 2012AP520-CR.dtp (concurring in part, dissenting two defendants claim effectively asserted their right to remain silent. concludes that both defendants failed. agree with the majority that that they The majority Majority op., ¶4. Carlos Cummings failed I 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 exchange in paragraph 31. The majority quotes 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. see. 2011AP1653-CR & 2012AP520-CR.dtp 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." ¶83 Detective Guy then continued to question Smith. Detective Guy did not have "a right" to question Smith after Smith said he did not want to talk. statement to the constitutional right contrary to remain The detective's undercut the silent.3 defendant's 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. confusion can be remedied with follow-up questions. required, clarifying questions reduce the True Even if not risk that further inquiry will violate the suspect's constitutional rights when an officer truly believes a suspect's statement was ambiguous. ¶85 different The statements from the in this statements 3 case in are State not v. appreciably Goetsch, 186 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. 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. in jail, I don't want to think about this." I've Id. Throw me Despite the fact that Goetsch continued to speak after he said he did not want to talk, the court of appeals invoked his right to remain silent. ¶86 to that he had Id. at 7-9. Like Goetsch, Smith told his interrogator that he had given all the information he had. want determined talk statements. about Id. this" is at 7. Smith's statement "I don't identical Thus, there to is one no of Goetsch's basis for the different result in the present case. ¶87 right remain to cut silent police." When The Supreme Court said that a defendant may invoke the off or questioning that he by [does] saying not "that want to he want[s] talk with to the See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010). 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 BRADLEY joins this concurrence/dissent. 3 that Justice ANN WALSH No. ¶90 2011AP1653-CR & 2012AP520-CR.ssa 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 Davis2 Recently, the United States Supreme Court adopted the objective defendant's "unequivocal invocation of invocation" the right to test for gauging a remain silent. See State agree that Berghuis v. Thompkins, 560 U.S. 370 (2010). ¶93 The defendants and the Davis/Thompkins governs the instant cases but express concern that the court of appeals has not followed these Supreme Court holdings. ¶94 that Both defendant Cummings and the State agree, as do I, 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 1 suspect's Miranda v. Arizona, 384 U.S. 436, 445 (1966) (emphasis added). 2 Davis v. United States, 512 U.S. 452 (1994). 1 No. statement in the circumstances.3 State agree that certain 2011AP1653-CR & 2012AP520-CR.ssa Defendant Cummings and the 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 45859). 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 subjective majority motives, opinion, seems to dwelling apply a on the subjective suspect's "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." ¶99 Saeger Saeger, 930 F. Supp. 2d at 1015-16. 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. ambiguity "by examining a 2011AP1653-CR & 2012AP520-CR.ssa 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 straightforward statements. to resist creating ambiguity in 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 discernable, statements, viewing a it bright courts is line employ suspect's so difficult between equivocal "selective language as to find and clear, unequivocal literalism," unequivocal, a sometimes 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. ¶107 As I wrote in my 2011AP1653-CR & 2012AP520-CR.ssa 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. "unequivocal" Comparing by a court statements with those that that have have "equivocal" reveals an unsettling arbitrariness. one court deemed "Can I call my lawyer?" been deemed been deemed For instance, 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. 6 No. 2011AP1653-CR & 2012AP520-CR.ssa 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). 7 No. 1 2011AP1653-CR & 2012AP520-CR.ssa
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