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

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Defendant’s request to call parents so they could call attorney for him was an insufficiently unequivocal assertion of his right to counsel:

¶36      We agree with the trial court’s conclusion that even if we assume that the defendant made requests to call his parents so that they could call an attorney for him,

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Where Miranda rights were properly given at the outset of the “first segment” of interrogation, re-administration of rights wasn’t necessary for “second segment,” several hours later, ¶¶24-28.

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

Issue: Whether, following his in-custody invocation of right to counsel, Hambly’s subsequent statements that he didn’t know what was going on (eliciting the officer’s response that he’d sold cocaine to an informant) and wanted to talk to find out what his options were amounted to a initiation of contact authorizing interrogation within the Edwards rule.

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

Issue/Holding:

¶25      …  If a suspect requests counsel at any time during the interview, he or she is not subject to further questioning until a lawyer has been made available or the suspect himself or herself reinitiates conversation. …

¶26      The Fifth Amendment/ Miranda right to counsel during custodial interrogations is not offense specific. 

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,