On Point: a. Ambiguous/unequivocal

State v. Johnnie Mertice Wesley, 2015AP590-CR, District 1, 7/6/16 (not recommended for publication); case activity (including briefs)

Wesley asserted his right to remain silent during an initial interrogation, and the detectives stopped questioning him. Detectives approached him two more times to resume questioning, and during the third interrogation Wesley made incriminating statements. The court of appeals holds that the detectives didn’t violate Wesley’s invocation of the right to remain silent by resuming interrogation. The court also rejects Wesley’s claim that he invoked the right to remain silent again during the third interrogation.

State v. Johnny Jerome Jones, 2014AP342-CR, 3/24/14, District 1 (not recommended for publication); click here for docket and briefs

Jones turned himself in for a hit-and-run accident that resulted in death.  During the interrogation, and after being Mirandized, he asked the detective: “So ya’ll can get a public pretender right now?” The detective laughed and replied: “You said it right, pretender . . . . they’re called public defenders . . . Um, we obviously due to the time right now, we can’t, um . . . .” Jones moved to suppress his subsequent statement and lost at the circuit court and on appeal.

State v. Carlos Cummings and State v. Adrean L. Smith, 2014 WI 88, 7/24/14, affirming per curiam court of appeals decisions in 2011AP1653-CR & 2012AP520-CR, majority opinion by Justice Ziegler; concurrence/dissent by Justice Prosser (joined by Justice Bradley); dissent by Chief Justice Abrahamson; case activity for Cummings and Smith

These cases address whether two Mirandized suspects unequivocally invoked their respective rights to remain silent, or cut off questioning, during police interrogations.  Citing State v. Markwardt, 2007 WI App 242 the majority held that both defendants seem to have meant something other than what they literally said.  Their attempts to cut off questioning were “equivocal” and thus their statements need not be suppressed.

Review of 2 unpublished per curiam court of appeals decisions in 2 unrelated cases now joined for purposes of oral argument.

State v. Carlos A. Cummings, District 4 court of appeals decision, case activity

State v. Adrean L. Smith, District 1 court of appeals decision, case activity

Cummings and Smith both present the question of whether defendants invoked their 5th Amendment right to cut off police interrogations. 

State v. Omar J. Smith, 2012AP863-CR, District 1, 9/10/13; (not recommended for publication); case activity

A jury convicted Smith of first-degree reckless homicide while armed as party to a crime and a host of other crimes.  Two issues are noteworthy.

Miranda-Edwards issue:  Police began questioning Smith while he was in custody.  He invoked his right to counsel, so they stopped. They re-initiated questioning (with fresh Miranda warnings) during which Smith said things like “I kind of want a lawyer present,

State v. Andrew M. Edler, 2013 WI 73, on certification of the court of appeals; majority opinion by Justice Crooks; case activity

Maryland v. Shatzer, 559 U.S. 98 (2010), allows police to reinitiate interrogation of a defendant who invoked his right to counsel if the defendant has been released from custody for at least 14 days. The Wisconsin Supreme Court now adopts the Shatzer rule,

State v. Ladarius Marshall, 2012AP140-CR, District 1, 7/2/13; court of appeals decision (not recommended for publication); case activity

The trial court properly denied Marshall’s motion to suppress his statements to police made during on-again off-again interrogation lasting from 10:45 a.m. to 9:00 p.m. The court first rejects Marshall’s argument he didn’t invoke his right to remain silent:

¶21      The circuit court found that Marshall never unequivocally and unambiguously invoked his right to remain silent.

State v. Corey J. Uhlenberg, 2013 WI App 59; case activity

Miranda custody

Uhlenberg was in “custody” during an interview at the police department, so the circuit court should have suppressed the statements Uhlenberg made during the interrogation after he requested an attorney:

¶11      Throughout its arguments, the State emphasizes the fact that the detective repeatedly told Uhlenberg that he was not under arrest. 

Review of per curiam court of appeals decision; case activity

Issues (from the Petition for Review):

• 1. Without obtaining a warrant, police tracked Subdiaz-Osorio’s location through the signal transmitted from his cell phone. Did the trial court err in denying his motion to suppress this evidence?

• 2. Did the court of appeals in deciding that the evidence that came from the illegal search was harmless?

On review of certification request; case activity

Invocation of the right to counsel

Issues (Composed by On Point)

1. Does the Wisconsin Constitution provide more protection than Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010) (holding that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda warnings again so long as the defendant has been released from custody for at least fourteen days)?