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

Questions presented:

1. Whether the Sixth Circuit violated 28 U.S.C. §2254(d)(1) by granting habeas relief on the trial court’s failure to provide a no adverse inference instruction even though this Court has not “clearly established” that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances.

2. Whether the Sixth Circuit violated the harmless error standard in Brecht v.

Genovevo Salinas v. Texas, USSC No. 12-246, 6/17/13

United States Supreme Court decision, affirming Salinas v. State, 369 S.W.2d 176 (Tex. Crim. App. 2012)

Consistent with the rule applied to a defendant’s silence after being informed of his Miranda rights, the Supreme Court holds that a suspect who is being questioned before he was arrested and read Miranda does not invoke his right against self-incrimination by merely staying quiet in response to police questioning.

State v. Matthew A. Lonkoski, 2013 WI 30, affirming unpublished court of appeals decision; case activity

About 30 minutes into being questioned by police about the death of his daughter, Matthew Lonkoski said he wanted a lawyer. (¶12). Under Edwards v. Arizona, 451 U.S. 477 (1981), the invocation of the right to counsel would mean the police had to cease interrogation unless Lonkoski reinitiated the interview.

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. 

State v. Antoine Leshawn Douglas, 2013 WI App 52; case activity

Miranda violation — interrogation by police

After a lawful arrest, but before being given Miranda warnings, Douglas initiated a conversation with the arresting officer in which he stated he wanted “to work” for the police by offering information about some marijuana dealers. After the officer declined that offer there was a “pause,” followed by Douglas changing the subject and volunteering information about a gun;

State v. Lee Yang, 2012AP1126-CR, Districts 1/4, 2/28/13; court of appeals decision (not recommended for publication); case activity

Yang was being interrogated about the shooting death of his ex-wife’s boyfriend when he invoked his right to counsel. Interrogation ceased and he was taken to jail. (¶¶3, 5). Several hours later, Gomez, a homicide detective, visited Yang in jail. (¶7). Gomez had not been involved in the earlier interrogation, but he did help execute a search warrant at Yang’s home,

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)?

court of appeals certification review granted 1/15/13; case activity

Issues Certified:

1. In Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010), the United States Supreme Court held that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda[2] warnings again so long as the defendant has been released from custody for at least fourteen days.  

seventh circuit decision, denying habeas relief in 641 N.E.2d 371 (Ill. 1994) and 521 N.E.2d 38 (1988)

Habeas Review – 6th Amendment Attachment of Counsel – State Court Findings

The Seventh Circuit rejects, on habeas review of his Illinois conviciton, Thompkins’ challenge to admissibility of his statement. Thompkins made his statement after his arrest and, according to the state court, before his initial bond hearing.