State v. Brooks
| Docket Number | 2022AP678-CR |
| Decision Date | 05 July 2023 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Michael K. Brooks, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment of the circuit court for Milwaukee County No 2017CF3588: MARK A. SANDERS, Judge.
Before Brash, C.J., Donald, P.J., and Dugan, J.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 Michael K. Brooks appeals a judgment, entered after a bench trial, convicting him of first-degree sexual assault of a child under thirteen years of age. He maintains that the circuit court erred when it denied his motion to suppress a portion of his custodial statement because, he claims, the custodial interrogation continued after he invoked his right to counsel. We conclude that Brooks did not unequivocally invoke his right to counsel for purposes of a custodial interrogation when he said that he wanted to talk to a lawyer in connection with the execution of a search warrant for his DNA. We further conclude that, even assuming that the circuit court erroneously denied Brooks's suppression motion, any error was harmless beyond a reasonable doubt. We therefore affirm.
¶2 On August 3, 2017, Detective Steve Wells questioned Brooks while he was in custody following an allegation that on July 23, 2017, he sexually assaulted a nine-year-old girl, R.G and her six-year-old sister, N.F. The interrogation was audio-recorded and took place in two parts that were separated by a break of four unrecorded minutes. The State subsequently charged Brooks with two counts of sexual assault of a child younger than thirteen years old. Brooks, who represented himself in the circuit court proceedings, moved to suppress the second part of the custodial interview on the ground that it continued after he had invoked his right to counsel. The circuit court conducted a hearing at which Wells was the sole witness. We take the facts regarding the custodial interview from the circuit court's findings and the audio recording in the record.
¶3 At the outset of the interview, Wells orally provided Brooks with the warnings required by Miranda v. Arizona 384 U.S. 436 (1966).[1] Brooks responded that he would talk. During the first part of the interview, Wells showed Brooks a portion of a surveillance video recorded from a Milwaukee building on the 2400 block of West Mitchell Street late in the evening of July 23, 2017. Brooks acknowledged that he was the adult male seen on the video walking with two little girls. Brooks also admitted to going onto the roof of a building in the area with the two girls, but he said that no sexual acts took place.
¶4 Approximately forty minutes into the interview, Wells served Brooks with a search warrant for a buccal swab to collect his DNA. Brooks reviewed the warrant, and Wells asked Brooks whether he wanted Wells to read the warrant aloud. Brooks said he knew that Wells was "doing [his] job," then added: "I know I'll be going to court anyway man so I prefer, I prefer to just talk to my attorney about all this." After a pause, Wells stated: "Time is now 11:25 a.m."
¶5 Brooks next inquired about the identity of the court official who signed the warrant, complained that he was submitting to the buccal swab "under duress," and continued to ask whether he could have a lawyer present for the procedure. Wells answered "no," and explained that Brooks was compelled by the warrant to permit the swab.[2] Brooks ultimately cooperated with the procedure.
¶6 Wells continued to record his interaction with Brooks throughout the execution of the search warrant. While Wells was completing the swabbing process, Brooks said that he was "just trying to talk to [Wells]," but the detective said that the conversation was over because Brooks had requested a lawyer. After collecting the buccal swab, Wells stated that the time was 11:30 a.m., and then he turned off the recording device.
¶7 Wells testified at the suppression hearing that after he stopped recording, he prepared to leave the interview room but Brooks "really was begging [Wells] to stay." Wells decided that he would do so.
¶8 Wells resumed recording, and he began this portion of the interview by stating: "the time is 11:34 a.m." Wells next said that Brooks Brooks responded: "I will talk." Brooks also said that it was his idea to talk and that he had not been forced or threatened. He explained that he "wasn't sure after getting this warrant if [he] could have a lawyer present ... and that's what made [him] ask for a lawyer." Brooks next reiterated that he "want[ed] to continue [the] conversation" and did not want a lawyer present. During the next forty minutes, Brooks made statements describing his sexual contact with R.G. on a rooftop.
¶9 The circuit court found that Wells intended to terminate the interview at 11:25 a.m., execute the search warrant, and then leave the room because "Wells thought that [Brooks] was invoking his right to an attorney." Based on the recorded interview and Wells's testimony, however, the circuit court went on to find that Brooks had in fact expressed confusion about the search warrant procedure and a preference to discuss the warrant with counsel. The circuit court further found that during the four minutes that the recording device was turned off, Brooks begged Wells to stay, and Wells eventually agreed.
¶10 The circuit court concluded that Brooks had not unequivocally invoked his right to counsel for purposes of a custodial interrogation. Therefore, although the detective had initially intended to stop questioning Brooks when he asked about an attorney, Wells was not required to terminate the interview or to take any other prophylactic step before continuing the interrogation. Accordingly, the circuit court denied the motion to suppress.[3]
¶11 The charges proceeded to a bench trial at which only the State presented evidence. R.G. testified and described how she and her sister N.F. followed Brooks to a rooftop on Mitchell Street where Brooks sexually assaulted R.G. A police officer testified that he collected the clothes that R.G. and N.F. were wearing when they encountered Brooks. The items included R.G.'s romper. A DNA analyst testified that she found sperm on the romper and developed the DNA profile of the male who deposited that sperm. The analyst also developed Brooks's DNA profile from his buccal swabs, and she determined that Brooks's DNA profile matched the profile of the male who deposited sperm on R.G.'s romper. The analyst then testified that Brooks was the source of the DNA on the romper, and she explained that she was able to say so because his profile was sufficiently rare that "you would have to go through approximately seven trillion plus people before you found that DNA profile again." Finally, the State presented the July 23, 2017, surveillance video of Brooks walking at night with two little girls, including one who was wearing a romper, and the audio recording of Brooks's custodial interview with Wells.
¶12 At the conclusion of the bench trial, the circuit court found Brooks guilty of sexually assaulting R.G. in violation of Wis.Stat. § 948.02(1)(e) (2017-18).[4] Brooks appeals, challenging the order that denied his suppression motion.
¶13 Review of an order denying suppression of evidence presents a question of constitutional fact that we address using a two-step inquiry. See State v. Delap, 2018 WI 64 ¶¶26-27, 382 Wis.2d 92, 913 N.W.2d 175. We uphold the circuit court's findings of historical fact unless they are clearly erroneous, and then we independently apply constitutional principles to those facts. See id., ¶27.
¶14 Brooks contends that the circuit court should have suppressed a portion of his custodial statement on the ground that he made the statement after invoking his right to counsel. A suspect facing custodial interrogation has constitutional rights to counsel and to remain silent. See State v. Abbott, 2020 WI.App. 25, ¶30, 392 Wis.2d 232, 944 N.W.2d 8. Pursuant to Miranda, the police must inform the suspect of those rights before conducting a custodial interrogation. See Abbott, 392 Wis.2d 232, ¶30. Incriminating statements obtained in violation of Miranda normally must be suppressed. See State v. Dobbs, 2020 WI 64, ¶52, 392 Wis.2d 505, 945 N.W.2d 609. A suspect who has received proper warnings, however, may validly waive the rights to counsel and to remain silent and choose to answer questions. See Abbott, 392 Wis.2d 232, ¶¶30-31.
¶15 Brooks does not dispute that at the outset of the custodial interview, he received the warnings required by Miranda, nor does he dispute that he waived his rights and agreed to talk to Wells. Brooks contends, however, that he invoked his right to counsel while the interrogation was underway and that questioning therefore should have terminated.
¶16 "Among the most important conclusions in Miranda is that once an individual invokes the right to counsel, interrogation must cease." State v Stevens, 2012 WI 97, ¶48, 343 Wis.2d 157, 822 N.W.2d 79. However, "[t]o invoke the right to counsel, a suspect must make an 'unambiguous and unequivocal request for counsel[.]'" Abbott, 392 Wis.2d 232, ¶32 (). Moreover, the right to counsel "that is the subject of Miranda ... requires, at a minimum, some statement that can reasonably be...
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