State v. Delebreau

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Justia Opinion Summary

The Supreme Court took this opportunity to clarify the law on waiver of the right to counsel after a defendant has been charged with a crime. After a jury trial, Defendant was convicted of one count of delivering heroin, second or subsequent offense, as a repeater and as party to a crime. Defendant appealed, arguing that statements he made to investigators while he was incarcerated and after his initial appearance should have been suppressed in accordance with State v. Dagnall. Before the interview, Defendant waived his Miranda rights and did not ask for counsel. The Supreme Court affirmed, holding (1) the U.S. Supreme Court’s decision in Montejo v. Louisiana effectively overruled Dagnall by establishing that a waiver of Miranda rights is sufficient to waive the Sixth Amendment right to counsel, and such a waiver is not presumed invalid simply because the defendant is already represented by counsel; and (2) Wis. Const. art. I, 7 does not provide greater protections than the Sixth Amendment of the federal Constitution in the context of a waiver of the right to have counsel present during questioning.

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2015 WI 55 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP1108-CR State of Wisconsin, Plaintiff-Respondent, v. Jesse J. Delebreau, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 352 Wis. 2d 647, 843 N.W.2d 441 (Ct. App. 2014 – Published) PDC No: 2014 WI App 21 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: June 16, 2015 November 5, 2014 Circuit Brown Thomas J. Walsh ROGGENSACK, C.J., concurs. (Opinion Filed.) ABRAHAMSON, BRADLEY, JJ. dissent. (Opinion Filed.) NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner, there were briefs by Stephen P. Hurley, Marcus J. Berghahn, and Hurley, Burish & Stanton, S.C., Madison, and oral argument by Stephen P. Hurley. For the plaintiff-respondent, the cause was argued by Jacob J. Wittwer, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. 2015 WI 55 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP1108-CR (L.C. No. 2011CF453) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. JUN 16, 2015 Jesse J. Delebreau, Defendant-Appellant-Petitioner. Diane M. Fremgen Clerk of Supreme Court REVIEW of a decision of the Court of Appeals. ¶1 decision DAVID T. PROSSER, J. of the court of Affirmed. This is a review of a published appeals, affirming a judgment of conviction in the Brown County Circuit Court, Mark A. Warpinski, Judge.1 The case presents questions related to the right to counsel for defendants who have been charged with a crime. ¶2 Jesse J. Delebreau (Delebreau) was convicted of one count of delivering heroin (less than three grams), second or 1 State v. Delebreau, 2014 WI App 21, 352 Wis. 2d 647, 843 N.W.2d 441. No. 2013AP1108-CR subsequent offense, as a repeater and as party to a crime.2 The circuit court entered a judgment of conviction following a jury trial in which the State utilized statements Delebreau made to investigators Jail. while These he was statements incarcerated were made at after the the Brown charge County against Delebreau had been filed and after Delebreau had appeared in court with appointed counsel. ¶3 The focus of Delebreau's appeal is that the statements he made to police after his initial appearance should have been suppressed in accord with State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680. In Dagnall, this court observed that the Sixth Amendment right to counsel attaches when criminal charges are filed. attorney represents Id., ¶52. the It then stated that, "[a]fter an defendant on particular charges, the accused may not be questioned about the crimes charged in the absence of an attorney." ¶4 changed. Since Id., ¶53. Dagnall, however, the legal landscape has In 2009 the United States Supreme Court issued its decision in Montejo v. Louisiana, 556 U.S. 778 (2009), holding that a defendant's waiver of his or her Miranda3 rights is sufficient to waive the Sixth Amendment right to counsel, even though Miranda rights are grounded in the Fifth Amendment. 2 Id. Contrary to Wis. Stat. §§ 961.41(1)(d)1, 961.48(1)(b), 939.62(1)(b), and 939.05. All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 3 Miranda v. Arizona, 384 U.S. 436 (1966). 2 No. at 786-87. 2013AP1108-CR The Court further held that a defendant's waiver need not be presumed invalid simply because the defendant is represented by counsel. Id. at 789. The Court's holding overruled Michigan v. Jackson, 475 U.S. 625 (1986)——on which Dagnall heavily relied——and seriously undercut our holding in Dagnall. ¶5 Following Montejo, we addressed the new legal landscape in State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741. However, our decision in Forbush featured such a marked of lack consensus among Wisconsin law somewhat unclear. the justices that it left Hence, we take this opportunity to clarify the law on waiver of the right to counsel after a defendant has been charged with a crime. ¶6 First, we reaffirm the position of a majority of justices in Forbush that Montejo effectively overruled Dagnall by establishing that a waiver of Miranda rights is sufficient to waive the Sixth Amendment right to counsel and that such a waiver is not presumed invalid simply because the defendant is already represented Article I, provide greater Section by 7 counsel. of the protections Second, Wisconsin than the we hold Constitution Sixth that does Amendment of that not the United States Constitution in the context of a waiver of the right to have counsel present during questioning. Accordingly, we affirm the decision of the court of appeals. I. FACTUAL AND PROCEDURAL HISTORY ¶7 The relevant facts are undisputed. This case stems from the Brown County Drug Task Force's (the Task Force) use of 3 No. 2013AP1108-CR a confidential informant to arrange for the purchase of drugs. In exchange for paraphernalia, confidential not B.J. being (the informant for charged with informant) the Task possession agreed Force. to On of drug act as February a 21, 2011, the informant arranged a meeting with Christopher Woodliff (Woodliff) to buy crack cocaine and heroin. The informant knew Woodliff through prior drug deals between the two. The Task Force outfitted the informant with a surveillance wire and gave him $200 to purchase drugs from Woodliff. ¶8 Once inside Woodliff's Woodliff, two other men, and a woman. home, the informant saw The informant had not met Delebreau before, but he identified him at trial as one of the other men he saw inside Woodliff's home. The informant asked Woodliff for two bags of crack cocaine and two bags of heroin. He gave Woodliff the $200 provided by the Task Force. Woodliff returned $80, then asked Delebreau if he had "any bindles left." Delebreau replied that he did, and the informant gave him the remaining $80. ¶9 left the informant heroin. The After the exchange of money, Woodliff and Delebreau room. two When baggies they of returned, what the Delebreau informant handed believed to the be Woodliff provided the informant with the crack cocaine. informant stayed inside Woodliff's home for about 45 minutes. ¶10 Once he left Woodliff's home, the informant met with one of the investigators from the Task Force and turned over the recording equipment along with the four baggies of drugs. 4 The No. 2013AP1108-CR two baggies of heroin were later weighed at the State Crime Laboratory and found to have a combined weight of 0.013 grams. ¶11 Delebreau probation hold. was taken into custody on March 31 He was held at the Brown County Jail. on a Sometime between April 7 and April 9, Delebreau sent a note to jail officials requesting to speak with a narcotics investigator in the Task Force about his involvement. ¶12 On April 14, Delebreau was charged with the delivery of heroin stemming from the February 21 transaction. That same day, Delebreau made his initial appearance in court4 where he was represented by Attorney William M. Fitzgerald, April 15, Delebreau a public defender.5 ¶13 The next day, met with investigator Roman Aronstein from the Task Force at the jail. Aronstein later testified that he was the person who previously referred charges related to Delebreau's involvement in the February 21 incident to the District Attorney's office but that he was unaware of the status of those charges. testified that at the time of the meeting he Delebreau was at the jail on a probation hold. Aronstein also believed that Aronstein did not check with the District Attorney's office about his criminal referral and he did not ask Delebreau whether he had actually 4 Court Commissioner Lawrence L. Gazeley presided. 5 Shortly after Delebreau's initial appearance, it was found that Fitzgerald had a conflict of interest because he represented a co-defendant. A new attorney was appointed to represent Delebreau. 5 No. been charged. activated the Before beginning audio/video equipment Delebreau his Miranda rights. did not ask for counsel. about the interview, at the jail Aronstein and read Delebreau waived his rights and In this interview, Delebreau admitted to having sold drugs.6 anything the 2013AP1108-CR However, Delebreau could not remember February incident even after being shown video of the transaction. ¶14 Aronstein returned three days interview Delebreau a second time. check whether whether he charges had had later (April to Again, Aronstein did not been filed against Before counsel. 18) Delebreau the interview took or place, Aronstein turned on the audio/video equipment and read Delebreau his Miranda rights. Aronstein testified that Delebreau stated during the interview that "he wasn't going to be able to beat these charges" and that "he was going to end up going to prison anyway so he might as well just cooperate with law enforcement." Aronstein testified that he believed from this exchange that Delebreau had no Aronstein had prepared Delebreau signed. intention a of meeting statement for with an attorney. Delebreau, which The statement acknowledged that Delebreau was the person in the video and based on the transaction shown, he must have been the one who sold heroin to the informant. However, Delebreau claimed he had no memory of the incident. 6 Aronstein started the meeting by introducing himself and Delebreau immediately said "he wished to resolve the matter at hand and [knew] that he [was] guilty of something." 6 No. ¶15 The two interviews were used 2013AP1108-CR as evidence in Delebreau's trial. Before the trial, Brown County Circuit Judge Mark denied A. Warpinski Delebreau's motion to suppress the statements he made in the interviews. The court of appeals denied to Delebreau's petition for leave appeal the order denying the suppression motion because Delebreau failed to meet the criteria for an interlocutory appeal. ¶16 heroin, At trial, a jury found Delebreau guilty of delivery of and the court sentenced him to eight years of imprisonment consisting of four years of initial confinement and four years affirmed of extended Delebreau's supervision. conviction The and court the of denial appeals of his suppression motion, determining that Montejo controlled and that Delebreau's Miranda right to counsel. waiver was thus sufficient to waive his State v. Delebreau, 2014 WI App 21, 352 Wis. 2d 647, ¶19, 843 N.W.2d 441. ¶17 Delebreau petitioned this court for review, which we granted on May 22, 2014. II. STANDARD OF REVIEW ¶18 question Whether Delebreau's right to counsel was violated is a of constitutional fact. When reviewing issues constitutional fact, we undertake a two-step analysis. Martwick, 2000 WI 5, ¶17, 231 Wis. 2d 801, 604 of State v. N.W.2d 552. First, we accept the circuit court's findings of evidentiary or historical fact in a suppression matter unless they are clearly erroneous. Id., ¶18. Second, 7 we independently review the No. 2013AP1108-CR application of constitutional principles to the facts. Id., ¶17. III. LEGAL BACKGROUND ¶19 We begin our analysis with a discussion of the legal background surrounding the Sixth Amendment right to counsel.7 ¶20 On April 1, 1986, the issued its decision in Jackson. United States Supreme Court Jackson had been convicted of second-degree murder based, in part, on a statement he made to police following his appointed for him. request at arraignment that Jackson, 475 U.S. at 628. counsel be Police had gone to see Jackson after the arraignment, read Jackson his Miranda rights, and upon waiver, elicited a statement from Jackson. ¶21 Id. The Court, in an opinion by Justice Stevens, held that the statement should have been suppressed. Id. at 628-29. It relied heavily on Edwards v. Arizona, 451 U.S. 477 (1981), which held that "an accused person in custody who has 'expressed his desire to deal with the police only through counsel, is not subject to further counsel has been himself initiates conversations with interrogation made available further the by to the him, authorities unless communication, police.'" Jackson, (quoting Edwards, 451 U.S. at 484-85). the until accused exchanges, 475 U.S. at or 626 The Court reasoned that, although Edwards was a Fifth Amendment case, its extension to 7 The Sixth Amendment to the United States Constitution states, in pertinent part, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. 8 No. 2013AP1108-CR cover the Sixth Amendment was appropriate because "the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before." Id. at 631. ¶22 The Jackson decision was not unanimous. Chief Justice Burger concurred in the judgment on the basis of stare decisis, but asserted that "plainly the subject calls for reexamination." Jackson, 475 U.S. at 636-37 (Burger, C.J., concurring). Rehnquist, joined by two justices, vigorously Justice dissented, contending that Edwards created a prophylactic rule to protect a defendant's Fifth Amendment privilege against compelled self- incrimination——not a rule to bar a defendant's waiver of his Miranda rights merely because the defendant had requested the appointment of counsel. Jackson, 475 U.S. at 637-39 (Rehnquist, J., dissenting). ¶23 Dagnall. In 2000 this court followed the Jackson majority in Dagnall was charged with first-degree intentional homicide in Wisconsin and was arrested for that charge on a warrant in Florida. Dagnall, 236 Wis. 2d 339, ¶5. On the day of his arrest, a Wisconsin attorney delivered a letter to the authorities in Dane County stating that he represented Dagnall and that the sheriff's department was not to interrogate Dagnall about the homicide. Id., ¶6. Two officers, at least one of whom was aware of the attorney's letter, traveled to Florida to speak with Dagnall and return him to Wisconsin. 9 Id., ¶7. No. ¶24 During their first interview, 2013AP1108-CR Dagnall told the officers, "My lawyer told me that I shouldn't talk to you guys." Id., ¶9. The officers read Dagnall his Miranda rights and Dagnall agreed to talk up to the point he thought he might incriminate himself. Id., ¶¶10-11. The following day the officers conducted a second interview after they read Dagnall his Miranda rights and Dagnall agreed to waive them. Id., ¶12. One of the officers, Detective Kevin Hughes, talked to Dagnall two more times after returning him to Wisconsin. Id., ¶13-14. The last time, Dagnall asked if his attorney knew he was back in Wisconsin; the interrogation. ¶25 detective said he didn't know and ended the Id. We held that Dagnall did not need to invoke his right to counsel because he was formally charged with a crime and represented by counsel. Id., ¶4. The officers knew Dagnall was represented by counsel and therefore did not have the authority to question Dagnall about the crime. Id., ¶¶62, 64. We also held that the Sixth Amendment right to counsel attaches at the initiation of charges, and that the accused invokes the Sixth Amendment right to counsel either by retaining counsel or by having counsel appointed. authorities may not Id., ¶¶52, 60. "knowingly exploit We explained that the opportunity to confront the accused without accused's counsel being present." Id., ¶51 (citing Maine v. Moulton, 474 U.S. 159, 176 (1985)). ¶26 Justice As in the Supreme Court, there was a vigorous dissent. Crooks interrogations argued after a against defendant 10 a is total prohibition formally charged on and No. represented by counsel. 2013AP1108-CR Dagnall, 236 Wis. 2d 339, ¶68 (Crooks, J., dissenting). Such a bright line rule means that law enforcement officials may not even question a person . . . once charges are filed and the person has an attorney. According to the majority, it makes no difference that such an individual is given Miranda warnings, waives his or her Fifth and Sixth Amendment rights, and agrees to talk to police officers about the crime charged. Id., ¶69. ¶27 Court Nine years after Dagnall, the United States Supreme reversed course in Montejo. Montejo connection with a robbery and murder. rights, and after police interrogated confessed to the murder. was arrested in He waived his Miranda him for two days, Montejo, 556 U.S. at 781. he Later, Montejo was brought before a judge for Louisiana's equivalent of a preliminary hearing. He was charged with the crime, and the court ordered appointment of counsel. ¶28 Id. Following the hearing, two police detectives visited Montejo and asked him to take them to where he had disposed of the murder weapon. Id. at 781-82. The detectives read Montejo his Miranda rights and he agreed to go on the trip. During the trip, victim's widow. Montejo Id. penned a letter of Id. at 782. apology to After the trip, Montejo met with his attorney for the first time. Id. The letter he had written was admitted into evidence at trial, and Montejo was convicted. ¶29 the Id. In reviewing the case, the Court overruled Jackson and its presumption that waivers of the right to counsel are invalid 11 No. 2013AP1108-CR when given after defendants assert their right to counsel. Court also counsel clarified during including that critical interrogations, all defendants stages so of that a have the the right criminal valid waiver The to process, of Sixth Amendment rights must be knowing, intelligent, and voluntary. Id. at 786. However, the Court held that a represented defendant may waive the Sixth Amendment right to counsel after receiving proper Miranda warnings without consulting counsel. Id. ¶30 State We addressed this development in Forbush in 2011. charged Forbush false imprisonment. with second-degree sexual Forbush, 332 Wis. 2d 620, ¶3. assault The and Forbush was arrested in Michigan and made a court appearance there in which he was represented by his brother, a lawyer. Id., ¶6. He was subsequently returned to Wisconsin where the Sheboygan County District Attorney's office and a detective with Sheboygan County Sheriff's Department represented by counsel. ¶31 Forbush had been notified that Forbush was Id., ¶3. Before his first court appearance in Sheboygan County, was detective. approached by a different Sheboygan County The detective began by reading the Miranda rights to Forbush and then asked whether Forbush would be willing to waive his right to counsel. began answering Id., ¶4. questions. Forbush waived his rights and Immediately following the questioning, Forbush was taken to his initial appearance where he was represented by local counsel as well as his brother. Id., ¶5. 12 No. ¶32 Before trial, Forbush moved to suppress the statements and the circuit court granted the motion. court 2013AP1108-CR found that authorities had Id., ¶7. violated The circuit Forbush's Sixth Amendment rights because they knew he was already represented by counsel at the time of questioning. ¶33 Id. The court of appeals reversed,8 noting that Montejo had overturned Jackson, and "held that the Sixth Amendment does not prevent police defendants." circuit from questioning Id., ¶8. court We based reversed and represented The court of appeals determined that the its decision effectively overruled by Montejo. ¶34 charged the court produced five separate opinions. on Dagnall, which was case that Id. of appeals in a The lead opinion, authored by Justice Roggensack, narrowly interpreted Montejo as removing the presumption of a Sixth Amendment violation for represented defendants in cases where it is unclear whether they invoked their right to counsel. Id., ¶51. Chief Justice Abrahamson, joined by Justice Bradley, conceded that Montejo superseded the state's previous interpretation of the Sixth Amendment right to counsel in Dagnall. Forbush, 332 Wis. 2d 620, ¶64 (Abrahamson, C.J., concurring). However, the Chief Justice contended that the right to counsel under the Wisconsin Constitution is more robust than the right under the Sixth Amendment of the U.S. Constitution. Id., ¶71. 8 State v. Forbush, 2010 WI App 11, 323 Wis. 2d 258, 779 N.W.2d 476. 13 No. ¶35 at 2013AP1108-CR A third opinion noted that Montejo was not in effect the time detective. of Forbush's interrogation by the Id., ¶103 (Prosser, J., concurring). Sheboygan Thus, Dagnall constituted the law of Wisconsin for law enforcement at that time. Id., ¶88. invoke his Under Dagnall, Forbush would not need to re- Sixth Amendment represented by counsel. right Id., ¶92. because he was already However, the third opinion observed that Montejo "is unquestionably the current controlling law on the subject of the Sixth Amendment right to counsel." Id., ¶116. ¶36 In dissent, Justice Crooks, joined by Justices Ziegler and Gableman, contended that Montejo overruled Dagnall and that a defendant's knowing, intelligent and voluntary waiver of the right to counsel could be achieved through the Miranda warnings. Id., ¶¶152-53 (Crooks, J., dissenting). In a separate dissent, Justice Ziegler, joined by Justice Gableman, reasoned that even though Dagnall articulated a sound, fair, and workable standard, Montejo overruled Dagnall because Dagnall was grounded in the Sixth Amendment of the U.S. Constitution, not Article I, Section 7 of the Wisconsin Constitution. Id., ¶157 (Ziegler, J., dissenting). ¶37 The common thread throughout this evolution of Sixth Amendment case law is the need to balance police flexibility in investigating criminal activity treatment criminal defendants. of with the Cases fundamentally like Jackson fair and Dagnall noted the special role of counsel after a suspect has been charged and formally become a criminal defendant. 14 E.g., No. Jackson, 475 U.S. at 632 (acknowledging 2013AP1108-CR criminal defendants' "right to rely on counsel as a 'medium' between [them] and the State" after they are charged) (citation omitted); Dagnall, 236 Wis. 2d 339, appointment ¶36. of These counsel cases as the equated the equivalent of request a for or defendant's invocation of the right to counsel. ¶38 Contrary holdings have not been grounded in the idea that the role of counsel after the initiation of charges is somehow not important or even critical. Rather, the concerns were more practical and recognized a defendant's authority to knowingly, intelligently, and voluntarily waive his rights. For example, one dissent in Dagnall offered the hypothetical of a criminal defendant who "is given Miranda warnings, waives his or her Fifth and Sixth Amendment rights, and agrees to talk to police officers about the crime charged." Wis. 2d 339, ¶69 (Crooks, J., dissenting). Dagnall, 236 A bright line rule prohibits the officers from speaking with such a defendant, thus frustrating their investigatory role, even though the defendant willingly consents to talk.9 9 As Chief Justice Burger put it: The urge for "bright-line" rules readily applicable to a host of varying situations would likely relieve this Court somewhat from more than a doubling of the Court's work in recent decades, but this urge seems to be leading the Court to an absolutist, mechanical treatment of the subject. At times, it seems, the judicial mind is in conflict with what behavioral——and theological——specialists have long recognized as a natural human urge of people to confess wrongdoing. (continued) 15 No. ¶39 Practical concerns decision in Montejo. also 2013AP1108-CR underpinned the Court's There, the Court observed that a vast number of criminal defendants are indigent, and different states treat counsel appointments for indigent defendants in different ways. Montejo, 556 U.S. at 784-85. Some states automatically appoint counsel for indigent defendants, while others require indigent defendants to request counsel. Id. This difference in practice makes a bright line rule unworkable, in part because "[p]olice who did not attend the [preliminary] hearing would have no way to know whether they could approach a particular defendant; and for a court to adjudicate that question ex post would be a fact-intensive and burdensome task, even monitoring were possible and transcription available." if Id. at 785. ¶40 Keeping in mind that courts——including this court—— have sought to strike a balance between these considerations, we turn to the current state of the law. IV. DISCUSSION A. Sixth Amendment Right to Counsel ¶41 We first examine whether Delebreau's waiver of his Miranda rights was sufficient to waive his Sixth Amendment right to counsel, as well as whether we should presume that his waiver was invalid because he was represented by counsel. This requires us to determine what law controls. Michigan v. Jackson, 475 U.S. 625, 636-37 (1986) (Burger, C.J., concurring). 16 No. ¶42 Our holding in Dagnall was grounded 2013AP1108-CR in the Sixth Amendment; the only issue we considered was "whether Dagnall properly invoked the Sixth Amendment right Dagnall, 236 Wis. 2d 339, ¶3 (emphasis added). to counsel." Accordingly, our analysis relied extensively on United States Supreme Court case law.10 We did not discuss the Wisconsin Constitution. ¶43 The United States Supreme Court, however, has final authority over questions of federal constitutional law. Its interpretation of the Sixth Amendment supersedes our own.11 The question is therefore whether the Court superseded our holding in Dagnall with its decision in Montejo and effectively overruled the Dagnall decision. ¶44 The answer, quite simply, is "yes." ¶45 Montejo was decided on May 26, 2009. The published decision of the court of appeals in State v. Forbush, 2010 WI App 11, 323 December 29, Wis. 2d 258, 2009, and it 779 said N.W.2d 476, that was Montejo released had on overruled Dagnall, and that Forbush's waiver of his right to counsel was therefore valid. This court's decision in Forbush did not come 10 E.g., McNeil v. Wisconsin, 501 U.S. 171 (1991); Patterson v. Illinois, 487 U.S. 285 (1988); Jackson, 475 U.S. 625; Maine v. Moulton, 474 U.S. 159 (1985); Edwards v. Arizona, 451 U.S. 477 (1981); Kirby v. Illinois, 406 U.S. 682 (1972). 11 "[T]he Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law . . . ." State v. Jennings, 2002 WI 44, ¶3, 252 Wis. 2d 228, 647 N.W.2d 142. 17 No. 2013AP1108-CR until after the relevant questioning in this case.12 Thus, our decision in Forbush did not control the operative facts here. In any event, a careful reading of the court's five opinions in Forbush would have provided very little encouragement to Delebreau. ¶46 In Forbush, every member of this court agreed that Montejo had an effect on Dagnall. effectively overruled Dagnall. ¶¶64, 81 (Abrahamson, (Crooks, J., Montejo "undercut Dagnall . . . ." the lead See Forbush, 332 Wis. 2d 620, C.J., dissenting). concurring); One many of Five concluded that Montejo stated the Id., that major the ¶¶137, decision underpinnings Id., ¶96 (Prosser, J., concurring). opinion "agree[d] with the State that 155 in of Finally, Montejo did modify Dagnall such that there is no presumption of a Sixth Amendment violation due to police interrogation of a represented defendant when the 'certain circumstances' of defendant match those of defendant-Montejo." ¶47 The upshot of Id., ¶51 (lead opinion). Forbush was that "Montejo is unquestionably the current controlling law on the subject of the Sixth Amendment right to counsel." Id., ¶116 (Prosser, J., concurring). ¶48 The Supreme Court's holding in Montejo is clear that a defendant is sufficiently apprised of his or her Sixth Amendment 12 Our decision in Forbush was released on April 29, 2011. State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 769 N.W.2d 741. The relevant questioning in this case took place on April 15 and April 18, 2011. 18 No. right to counsel by the Miranda warnings, 2013AP1108-CR and that a valid Miranda waiver effectively waives the Sixth Amendment right to counsel as well as the Fifth Montejo, 556 U.S. at 786-87. presumption that their Amendment right to counsel. Defendants are not entitled to a waiver of the presence of counsel invalid, even if they are already represented by counsel. is Id. at 789-90. ¶49 that his Given the above, the first of Delebreau's arguments—— Sixth easily resolved. Amendment right to counsel was violated——is Delebreau makes no attempt to argue that his Miranda waiver was invalid. Rather, he argues that the Miranda waiver was insufficient to waive his Sixth Amendment right to counsel. The United States Supreme Court disagrees. Therefore, we hold that Delebreau's Sixth Amendment right to counsel was not violated.13 B. Wisconsin Constitution ¶50 Our inquiry does not end with the Sixth Amendment. Delebreau also argues that his questioning violated his right to counsel under Article I, Section 13 7 of the Wisconsin Delebreau also contends that his appearance in court with an attorney was sufficient to invoke his right to counsel, such that police could not even approach him and request that he waive his right. However, he later concedes that "the rule adopted by [Montejo v. Louisiana, 556 U.S. 778 (2009)] allows police to interrogate a defendant after he has appeared in court with counsel and requires the defendant to assert his right to counsel in every contact with police." Therefore, it is of no consequence that Delebreau's request to speak with police came before his appearance in court with an attorney and that police questioned him after that appearance. 19 No. Constitution. To determine if he is 2013AP1108-CR correct, we first ask whether the Wisconsin Constitution provides the same post-charge right-to-counsel protections as the Sixth Amendment. constitution Amendment, provides we would greater be protections confronted with than If our the whether Sixth Delebreau's statements should have been suppressed under Article I, Section 7. ¶51 It is well understood that a state's constitution may provide criminal defendants with rights beyond those afforded by the United States Constitution. have the expanded scope the the of Wisconsin federal However, as a general rule, we Constitution's constitution protections "only in beyond cases where either the state constitution or 'the laws of this state require that greater protection afforded.'" State of v. the citizens' Agnello, 226 liberties . . . be Wis. 2d 164, 180, 593 N.W.2d 427 (1999) (quoting State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977)). "Where . . . the language of the provision in the state constitution is 'virtually identical' to that of the federal provision or where no difference in intent is discernible, state Wisconsin constitution courts consistent have with the normally United construed States Court's construction of the federal constitution." 81 (citing State v. Tompkins, 144 the Supreme Id. at 180- Wis. 2d 116, 133, 423 N.W.2d 823 (1988)). ¶52 Article I, Section 7 of the Wisconsin Constitution provides, "In all criminal prosecutions the accused shall enjoy the right to be heard by himself 20 and counsel . . . ." Its No. 2013AP1108-CR federal analogue in the Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance discernible of counsel difference for between his these relate to the right to counsel. defense." two We provisions see as no they Nothing suggests that "the right to be heard by . . . counsel" should be any more expansive than "the right . . . to have the assistance of counsel . . . ." ¶53 Delebreau holds up State v. Bevel, 745 S.E.2d 237 (W. Va. 2013), and State v. Lawson, 297 P.3d 1164 (Kan. 2013), as possible avenues for finding greater rights under the Wisconsin Constitution. In Lawson, the Supreme Court of Kansas held that a Kansas statute provided greater protections than the Sixth Amendment. Id. at 1173-74. Wisconsin does not have a similar statute, so Lawson does not advance Delebreau's argument. In Bevel, the West Virginia Supreme Court of Appeals held that West Virginia's own constitution provided greater protections than those afforded by the Sixth Amendment under Montejo despite a history of interpreting Constitution Amendment. the as the consistent right with the Bevel, 745 S.E.2d at 247. situation inconsistent in Wisconsin, with interpretation. our the under right West under Virginia the Sixth While this is similar to holding precedent the in West regarding Virginia is constitutional In any event, the question is not whether a state may offer greater protections than those in Montejo but whether Wisconsin does. ¶54 As the State notes, the various opinions in Forbush indicate that a majority of the court held that the Wisconsin 21 No. 2013AP1108-CR Constitution and the United States Constitution provide the same protections in this context. in Forbush to say that We need not dissect the opinions that holding is consistent with precedent. ¶55 In State v. Klessig, we said: A criminal defendant in Wisconsin is guaranteed this fundamental right to the assistance of counsel for his defense by both Article I, § 7 of the Wisconsin Constitution and the Sixth Amendment of the United States Constitution . . . . The scope, extent, and, thus, interpretation of the right to the assistance of counsel is identical under the Wisconsin Constitution and the United States Constitution. State v. Klessig, 211 Wis. 2d 194, 201-03, 465 N.W.2d 716 (1997) (footnotes omitted) Sanchez, 201 language of appear to (citations Wis. 2d 219, the Wisconsin differ so omitted). 226, 548 provision, See also N.W.2d 69 on substantially its State (1996) face, from ("The does the v. not federal Constitution's guarantee of the right to counsel so as to create a different right."). ¶56 counsel, Delebreau but does touts not the explain importance how the of United the right States to Supreme Court's interpretation of the right under the Sixth Amendment fails to protect it. We see no reason to deviate from our prior practice of interpreting the Wisconsin Constitution's right to counsel as coextensive with the right under the federal constitution. ¶57 Accordingly, because we hold that Delebreau's right to counsel was not violated under the Sixth Amendment, we also hold 22 No. 2013AP1108-CR that his right to counsel was not violated under Article I, Section 7 of the Wisconsin Constitution. C. Other Considerations ¶58 Before concluding, we pause briefly to note that today's ruling should not be viewed as a sea change in the law. As the United States Supreme Court explained, the Jackson rule (and consequently, our rule in Dagnall) was a fourth layer of prophylaxis deemed unnecessary by the Supreme Court because of other protections——undisturbed by See Montejo, 556 U.S. at 793-95. Montejo——already in place. "Under the Miranda-Edwards- Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings."14 ¶59 Id. at 794. Police still may not badger defendants into waiving their right to counsel. 285, 292 n.4 (1988). See Patterson v. Illinois, 487 U.S. Police still must cease questioning of criminal defendants when these defendants invoke their right to counsel. invokes See Edwards, 451 U.S. at 484. the right to counsel, police After a defendant still may not resume questioning until counsel is present or 14 days have passed. See Maryland v. Shatzer, 559 U.S. 98, 110 (2010); Minnick v. Mississippi, 498 U.S. 146, 153 (1990). 14 Minnick v. Mississippi, 498 U.S. 146 (1990). 23 No. ¶60 Our holding merely clarifies that 2013AP1108-CR a valid Miranda waiver is sufficient for a criminal defendant to waive the right to have counsel present during questioning, and that courts need not presume any waiver is involuntary simply because the defendant is already represented by counsel. V. CONCLUSION ¶61 First, we reaffirm the position of a majority of justices in Forbush that Montejo effectively overruled Dagnall in establishing that a waiver of Miranda rights is sufficient to waive the Sixth Amendment right to counsel, and that such a waiver is not presumed invalid merely because the defendant is already represented by counsel. Second, we hold that Article I, Section 7 of the Wisconsin Constitution does not provide greater protections than the Sixth Amendment of the United States Constitution in the context of a waiver of the right to have counsel present during questioning. Accordingly, we affirm the decision of the court of appeals. ¶62 By the Court.—The decision of the court of appeals is affirmed. 24 No. ¶63 PATIENCE DRAKE ROGGENSACK, C.J. 2013AP1108-CR.pdr (concurring). I write in concurrence because I conclude that Jesse Delebreau's constitutional right to counsel was not violated by Detective Roman Aronstein's interviews on April 15 and 18 because Delebreau initiated contact with law enforcement and was given Miranda1 warnings before each interview. In addition, I agree that the right to counsel under Article I, Section 7 of the Wisconsin Constitution provides the same protections as does the right to counsel under the Sixth Amendment of the United States Constitution.2 State v. Forbush, 2011 WI 25, ¶15, 332 Wis. 2d 620, 796 N.W.2d 741; State v. Sanchez, 201 Wis. 2d 219, 226, 548 N.W.2d 69 (1996). ¶64 I write separately because I conclude that the majority opinion overstates the United States Supreme Court's holdings in Montejo v. Louisiana, 556 U.S. 778 (2009). Montejo directs that a defendant who has been charged with a crime must take affirmative action in order to invoke his or her Sixth Amendment right to counsel, and that without an invocation by the defendant, no violation of a defendant's constitutional right to counsel occurs when a defendant is questioned. Id. at 797. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Because I write in concurrence and because this is not a new conclusion, I do not further detail that the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution provide the same protections to a defendant who has been charged with criminal conduct. 1 No. I. ¶65 On March 31, BACKGROUND 2011, custody on a probation hold. employee a written 2013AP1108-CR.pdr request Jesse Delebreau was taken into Shortly thereafter, he gave a jail to speak with a drug enforcement officer. ¶66 On April 14, Delebreau was charged with a sale of heroin; he appeared via video-conferencing from the jail on that charge. Attorney William Fitzgerald, Defenders Office, also appeared. was uncertain whether he could of the State Public However, Attorney Fitzgerald represent Delebreau due to a potential conflict of interest. ¶67 Task On April 15, Detective Aronstein, a member of the Drug Force, met with written request. 18. Delebreau in response to Delebreau's Aronstein met with Delebreau again on April Aronstein gave Delebreau Miranda warnings before the start of each interview. In response to those warnings, Delebreau affirmatively waived his right to counsel. ¶68 Delebreau interviews. he sold made incriminating statements during both He also signed a written statement admitting that heroin, based on his self-identification as a participant in a video of the drug sale. ¶69 held. On April 27, a rescheduled initial appearance was Delebreau and Attorney Peter Kraft appeared in court, whereupon the court noted, "He's making an appearance for the first time with the attorney that will be representing him as 2 No. this case goes forward."3 establish whether 2013AP1108-CR.pdr However, again, the record does not Delebreau took any affirmative steps that caused Attorney Kraft or any other attorney to appear on his behalf on the pending drug charges. ¶70 Prior to trial, Delebreau moved to suppress his statements, claiming Aronstein's interviews violated his Sixth Amendment right to counsel. At the hearing on Delebreau's motion, Attorney Fitzgerald testified that as an attorney for the Public Defenders Office, he would have received notice when "probation and parole indicates that they're going to commence revocation proceedings, and a person from our office goes there to see if those people want to be interviewed for eligibility determination." Brown County At this point Attorney Wendy Lemkuil of the District Attorney's Office interrupted Attorney Leonard Kachinsky's questioning of Attorney Fitzgerald to offer a stipulation. ¶71 After accepting the proposed stipulation that established April 14 as the date on which formal charges were filed, Attorney Kachinsky said, "Perhaps there [are] a few more questions as to Mr. Delebreau actually requesting counsel I need to ask." Attorney Kachinsky then asked, "When you interviewed Mr. Delebreau, do the records of your office indicate whether or not he requested the services of the State Public Defender to represent him on criminal charges?" 3 Attorney Lemkuil objected The record reflects that on May 5, 2011, Delebreau and Attorney Genelle Johnson appeared. A waiver of the preliminary hearing was made and accepted. 3 No. on relevancy grounds, to which objection 2013AP1108-CR.pdr Attorney Kachinsky explained, "I think the issue is whether or not he requested counsel as opposed to the State Public Defender just jumping in." Attorney Kachinsky accurately perceived the Montejo issue. ¶72 answered Unfortunately, Attorney Kachinsky's question was never and consequently, the record does not conclusively establish whether Delebreau took affirmative action to invoke his right to counsel and the date or dates on which any such action may have taken place. ¶73 The circuit court denied the motion to suppress. Delebreau was convicted by a jury that was presented with his statements to Aronstein. II. A. ¶74 DISCUSSION Standard of Review Whether a defendant who has been charged with a crime has invoked his or her right to counsel is a two-part question. Forbush, 332 Wis. 2d 620, ¶10. findings of historical clearly erroneous." the application of Id. or "We uphold the circuit court's evidentiary fact unless they are In addition, we independently review constitutional principles defendant waived to facts found. Id. ¶75 Whether a has his Sixth Amendment right to counsel by initiating contact with law enforcement is also a question of law for our independent review. Arizona, 451 U.S. 477, 484-85 (1981). 4 Edwards v. No. B. 1. ¶76 2013AP1108-CR.pdr Right to Counsel General principles A defendant's Sixth Amendment right to counsel arises when he or she is charged with a crime. Patterson v. Illinois, 487 U.S. 285, 290 (1988) (explaining that "[t]here can be no doubt that petitioner had the right to have the assistance of counsel at his postindictment interviews with law enforcement"). Under United States Supreme Court precedent, once charges are filed, the "Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." ¶77 Montejo, 556 U.S. at 786. However, the Sixth Amendment right before its protections will be afforded. must be invoked Id. at 789 (reasoning that "a defendant who never asked for counsel has not yet made up his mind affirmatively cannot badger in the invokes him first his into instance"). right waiving to that Once counsel, a law right. defendant enforcement Id. at 794-95 (explaining that a defendant who invokes his right to counsel is protected because "[a]t that point, not only must the immediate contact end, but 'badgering' by later requests is prohibited."). ¶78 The right to counsel under the Sixth Amendment can be waived, just as the Fifth Amendment right can. Id. at 786. Therefore, when a defendant has been given Miranda warnings, which advise as to the right to counsel and the consequences of proceeding in the absence of counsel and the defendant chooses to answer questions, Miranda warnings are sufficient to provide the foundation for waivers of both 5 the Fifth and the Sixth No. Amendments rights to counsel. 2013AP1108-CR.pdr Id.; Patterson, 487 U.S. at 296. The right to counsel also can be waived before or after its invocation by a defendant who initiates enforcement and volunteers a statement. contact with law State v. Kramar, 149 Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989). 2. ¶79 Delebreau's rights At the time Delebreau spoke to Aronstein, the record does not reflect whether Delebreau had affirmatively invoked his Sixth Amendment right to counsel. Attorney Kachinsky recognized that although the Sixth Amendment right to counsel attaches when criminal charges are to invoke obligation filed, that Delebreau right nevertheless before protections would be afforded to him. had Sixth the Amendment Montejo, 556 U.S. at 797 (concluding that "[i]f Montejo made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, then no interrogation initiated it"). should have taken place unless Montejo However, Attorney Kachinsky's questioning of Attorney Fitzgerald left in doubt whether Delebreau had invoked his Sixth Amendment right to counsel. ¶80 Here, however, even assuming arguendo that Delebreau did affirmatively invoke his Sixth Amendment right to counsel, Delebreau's statements to law enforcement were initiated by his written request to speak with drug enforcement personnel. Aronstein's interviews with Delebreau on April 15 and April 18 occurred in direct response to Delebreau's written request. Furthermore, prior to each interview, Aronstein read Delebreau 6 No. 2013AP1108-CR.pdr Miranda warnings and Delebreau affirmatively chose to proceed. Those warnings were sufficient protection for Delebreau's Sixth Amendment right to counsel. 296. Therefore, no Id. at 786; Patterson, 487 U.S. at constitutional right was violated when Aronstein interviewed Delebreau, and the circuit court did not err in denying Delebreau's suppression motion. III. ¶81 Delebreau's CONCLUSION constitutional right to counsel under state and federal constitutional provisions was not violated by Aronstein's interviews because Delebreau initiated contact with law enforcement and he was given Miranda warnings before each interview. Accordingly, I respectfully concur to the majority opinion. 7 No. ¶82 SHIRLEY S. ABRAHAMSON, J. 2013AP1108-CR.ssa (dissenting). On April 14, 2011, the defendant was charged with delivering heroin and made his initial appearance in court, where he was represented by a public defender. The defendant thereafter made incriminating statements during two custodial interrogations. ¶83 The core issue presented is whether Article I, Section 7 of the Wisconsin Constitution, which affords the defendant the right to counsel, requires incriminating statements.1 ¶84 The law suppression of the defendant's I conclude that it does. enforcement agent who interrogated the defendant was apparently unaware that charges had been filed against the defendant and that the defendant was represented by counsel. The agent did not contact the defendant's attorney and the defendant's attorney was not present for the interrogations. Instead, the agent read the defendant his Miranda rights,2 which the defendant waived. ¶85 In considering whether the custodial interrogations of the defendant were permissible under the Wisconsin Constitution in light of the defendant's Miranda waiver, and thus whether the defendant's incriminating statements were admissible at trial, I would adhere to this court's reasoning in State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680. 1 "In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel . . . ." Wis. Const. Art. 1, § 7. 2 See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that before a law enforcement officer can interrogate a person in custody, that person must be informed of specified rights). 1 No. ¶86 charged 2013AP1108-CR.ssa Dagnall established that once an accused is formally with a crime and is represented by counsel on that charge, the accused need not unambiguously invoke the right to counsel to be protected from police-initiated interrogation.3 Rather, subsequent police-initiated interrogation is necessarily improper. Any statements made by interrogation must be suppressed.4 a defendant during such A waiver of the defendant's Miranda rights will not render the interrogation constitutional or the defendant's statements admissible.5 ¶87 As Justice Ziegler and Justice Gableman have written, Dagnall articulated a "sound, fair, and workable standard."6 ¶88 Further, the Dagnall rule fits with Wisconsin's long and cherished history of recognizing and protecting an accused's right to an attorney under the Wisconsin Constitution. ¶89 In 1859, just 11 years after Wisconsin achieved statehood, this court declared that an accused has a fundamental right to an attorney under the Wisconsin Constitution.7 The court reasoned that the right to a full and fair trial afforded by the Wisconsin Constitution is meaningless when the accused 3 State v. Dagnall, 2000 WI 82, ¶61, 236 Wis. 2d 339, 612 N.W.2d 680. 4 Id., ¶¶64-66. 5 Id., ¶65. 6 See majority op., ¶36. 7 Carpenter v. Dane County, 9 Wis. 249 (*274) (1859). See also County of Dane v. Smith, 13 Wis. 654 (*585), 656-57 (*58688) (1851). 2 No. cannot obtain counsel.8 Accordingly, the 2013AP1108-CR.ssa court instructed counties to appoint attorneys to represent indigent felons at government expense.9 ¶90 It was not until 1963, a full 104 years later, that the United States Supreme Court recognized a similar right under the federal constitution.10 ¶91 Given this history, there can be no question that the state constitutional right to counsel stands apart from, and has meaning independent of, the corollary right under the federal constitution. counsel Supreme must The longstanding state constitutional right to be protected Court's evolving constitution. irrespective of the interpretation of United the States federal As explained in State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977), this court "will not be bound by the minimums which are imposed by the Supreme Court of the United 8 Carpenter, 9 Wis. at 251 (*276) ("[W]ould it not be . . . mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial . . . and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real [] value to him[?]"). 9 Carpenter, 9 Wis. at 252 (*277) ("It seems eminently proper and just that the county . . . should pay an attorney for defending a destitute criminal."). 10 Gideon v. Wainright, 372 U.S. 335, 344 (1963) ("[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."). See also State v. Forbush, 2011 WI 25, ¶71, 332 Wis. 2d 620, 796 N.W.2d 741 (Abrahamson, C.J., concurring); State v. Jennings, 2002 WI 44, ¶65, 252 Wis. 2d 228, 647 N.W.2d 142 (Abrahamson, C.J., dissenting). 3 No. 2013AP1108-CR.ssa States if it is the judgment of this court that the Constitution of Wisconsin . . . require[s] that greater protection of citizens' liberties ought to be afforded." ¶92 Thus, although the United States Supreme Court has rejected the Dagnall rule in its interpretation of the federal constitution,11 this court need not and should not do the same in its interpretation of the state constitution.12 Unlike the approach taken by the majority opinion today, the Dagnall rule meaningfully protects "an accused's right to counsel in pretrial interrogation," which is "imperative to protect the trial rights of an accused and to enhance the integrity of the factfinding process."13 ¶93 I would adhere to Dagnall and would continue this court's 156-year history of steadfastly protecting defendants' right to counsel under the state constitution. ¶94 For the reasons set forth, I dissent. ¶95 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion. 11 See Montejo v. Louisiana, 556 U.S. 778 (2009). 12 See Forbush, 332 Wis. 2d 620, ¶¶66-71 (Abrahamson, C.J., concurring). 13 Id., ¶78 (Abrahamson, C.J., concurring). 4 No. 1 2013AP1108-CR.ssa