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

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue: Whether pre-custodial assertion (during standoff with police) of right to counsel barred interrogation following subsequent arrest.

Holding:

¶13      Hassel is dispositive here. … Observing that Miranda safeguards apply only to custodial interrogations and that Hassel did not argue he was in custody when he invoked his right to silence,

State v. Yediael Yokrawn Backstrom, 2006 WI App 114
For Backstrom: Timothy A. Provis

Issue: Whether re-administration of Miranda warnings was necessary where the suspect had previously waived those rights following a “full and proper recitation twenty-one hours earlier.”

Holding:

¶11      Based on the record presented, we conclude that the trial court did not err in failing to suppress Backstrom’s statement.

State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding1: Hassel’s custodial statement, “I don’t know if I should talk to you” was ambiguous and therefore triggered no duty to terminate the interrogation, ¶¶16-19.

The court of appeals purported to follow Davis v. United States, 512 U.S. 452 (1994), which holds that the police have no duty to clarify an ambiguous assertion of rights made after clearly waiving them.

State v. Xavier J. Rockette, 2005 WI App 205
For Rockette: Timothy A. Provis

Issue/Holding:

¶24     We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette’s cooperation at the interview, which his own counsel set up, was to increase his chances of securing some leniency from the State.

State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: Hassel’s noncustodial statement, “I can’t talk to you,” did not amount to a Miranda-protected assertion of rights, largely because such rights can’t be invoked “anticipatorily,” ¶¶8-15. (State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982) distinguished as a rule of evidence safeguarding against substantive use at trial of prearrest silence.)

State v. Maurice S. Ewing, 2005 WI App 206
For Ewing: David R. Karpe

Issue/Holding: Where the defendant waived his rights and gave pre-trial statements to the police and presented an alibi defense at trial, prosecutorial evidence that the defendant had not revealed the alibi during those statements, and exploitation of that omission during closing argument, did not amount to impermissible comment on silence. “Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial.” ¶¶10-13.

 A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004)

Issue/Holding1:

In determining whether a person is “in custody,” the question is whether, examining the totality of the circumstances, a reasonable person in the petitioner’s position would have felt “at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). In making this determination, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”Berkemer v.

A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004)

Issue/Holding:

… In fact, the Supreme Court has consistently recognized that a confession or waiver of rights by a juvenile is not the same as a confession or waiver by an adult. A defendant’s age is an important factor in determining whether a confession is voluntary. ……

Here, the circumstances weigh in favor of a determination that Morgan’s inculpatory statements were involuntary.

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Because the “presentence investigation was not part of the accusatory stage of a criminal proceeding”; and because the PSR “interview was routine and was not conducted while Jimmie’s jeopardy was still in doubt, Jimmie, “unlike the defendant in Estelle,

State v. Matthew J. Knapp (I), 2003 WI 121, on certification; vacated and remanded for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590; Knapp I reaffirmed on remand, State v. Matthew J. Knapp (II),