On Point: A. In-Custody, 5th Amendment

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256

For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶93      The defendant summarizes his argument that he did not voluntarily, knowingly, and intelligently waive his right to counsel, stating that at the time of his arrest, he was hungry, alone in the back seat of a squad car,

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶77      Whether a suspect “initiates” communication or dialogue does not depend solely on the time elapsing between the invocation of the right to counsel and the suspect’s beginning an exchange with law enforcement, although the lapse of time is a factor to consider.…

¶82      … [T]he defendant’s statement here that he did not understand why he was under arrest was clearly seeking information and constituted an initiation of communication with Rindt in the most ordinary sense of the word.

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate

Issue: Whether a suspect’s in-custody invocation of right to counsel before administration of Miranda warnings triggers the Edwards bar on interrogation absent the suspect’s reinitiating communication with the police.

Holding:

¶23      The State argues that in the present case when the defendant asked for an attorney he was not subject to custodial interrogation.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: “Under the above case law, it is clear that, if Cole did invoke his Fifth Amendment/Miranda right to counsel when he was arrested on the battery charge, then the statement he gave Officer Riley while still in custody is inadmissible even if Cole’s waiver of Miranda rights in that interview was otherwise valid,”

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School

Issue/Holding:

¶46      We agree with Mayo’s position, and the State’s concession at oral argument, that the prosecutor’s remarks on Mayo’s pre-Miranda silence, and the testimony she elicited in that regard, during the State’s opening statement and case-in-chief, violated Mayo’s right to remain silent under the Fifth Amendment of the United States Constitution,

State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis

Issue/Holding: Custody, for purposes of Miranda, requires that the suspect’s freedom be restricted to a degree associated with formal arrest, and is as gauged by a multi-factor test articulated in State v. Zan Morgan, 2002 WI App 124, ¶¶13-14. None of those factors are present in this instance,

State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn

Issue/Holding:

¶35   The circuit court relied on statements Markwardt made one hour and eleven minutes into the interview for its ruling that she had properly asserted her right to remain silent. Her exact words were: “Then put me in jail. Just get me out of here.

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: Thexton wasn’t entitled to Miranda warnings “at the time the PSI was being prepared”:

¶8        Thexton also claims that Streekstra violated his Fifth Amendment rights when he interviewed him during the investigation.  Thexton claims that Streekstra used the prior PSI as a basis for questioning him,

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding:

¶16      Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest.

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.

Issue/Holding:

¶31      … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences,