State v. Cummings
| Decision Date | 24 July 2014 |
| Docket Number | Nos. 2011AP1653–CR, 2012AP520–CR.,s. 2011AP1653–CR, 2012AP520–CR. |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Carlos A. CUMMINGS, Defendant–Appellant–Petitioner. State of Wisconsin, Plaintiff–Respondent, v. Adrean L. Smith, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For defendant-appellant-petitioner Carlos A. Cummings, there were briefs by David R. Karpe, Madison, and oral argument by David R. Karpe.
For the plaintiff-respondent, the cause was argued by Jacob J. Wittwer, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
For defendant-appellant-petitioner Adrean L. Smith, there were briefs by Dustin C. Haskell, assistant state public defender, and oral argument by Dustin C. Haskell.
For the plaintiff-respondent, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
¶ 1 This is a review of two per curiam decisions of the court of appeals, State v. Cummings, No. 2011AP1653–CR, unpublished slip op., 346 Wis.2d 279, 827 N.W.2d 928 (Wis.Ct.App. Jan. 10, 2013), and State v. Smith, No. 2012AP520–CR, unpublished slip op., 346 Wis.2d 280, 827 N.W.2d 929 (Wis.Ct.App. Jan. 23, 2013). In Cummingsthe court of appeals affirmed the orders of the Portage County Circuit Court,1 denying Carlos A. Cummings' (“Cummings”) motion to suppress and motion for postconviction relief. In Smith the court of appeals affirmed the order of the Milwaukee County Circuit Court 2 denying Adrean L. Smith's (“Smith”) motion to suppress.
¶ 2 Both Cummings and Smith argue that they unequivocally invoked the right to remain silent prior to making incriminating statements to police.3 Both Smith and Cummings argue that, as a result, their incriminating statements should have been suppressed. Cummings separately argues that the circuit court should have granted his motion for postconviction relief because the sentence imposed on him was unduly harsh.
¶ 3 The State argues that neither Cummings nor Smith unequivocally invoked the right to remain silent, and further argues that Cummings' sentence was not unduly harsh.
¶ 4 We conclude that neither Cummings nor Smith unequivocally invoked the right to remain silent during their interrogations. As a result, the circuit court properly denied each defendant's motion to suppress the incriminating statements made to police. We also conclude that Cummings' sentence was not unduly harsh. We therefore affirm the court of appeals in both cases.
¶ 5 On November 18, 2008, police responded to a reported shooting at a park in Stevens Point, Wisconsin. On arriving at the scene, officers found the victim, James Glodowski (“Glodowski”), conscious and responsive despite having been shot a number of times in the head and upper body.4 Glodowski told police that he had been shot by a woman named “Linda,” later identified as Linda Dietze (“Dietze”).
¶ 6 Glodowski explained that Dietze had called him and asked him to meet her at the park. Dietze had told Glodowski during the call that she wanted to repay $600 that she had previously borrowed from him. Dietze also told Glodowski that she had video evidence of an affair between his wife, Carla Glodowski (“Carla”), and a man named “Carlos.” When Glodowski arrived at the park, Dietze handed him the videotape, pulled out a .22 caliber pistol, and shot him. Before fleeing the scene on foot, Dietze told Glodowski that she was sorry for shooting him but that it was his wife's fault.
¶ 7 As part of their investigation, Stevens Point police officers interviewed Cummings on the afternoon of the shooting. During his interview with police, Cummings denied any knowledge or involvement in the shooting, though he admitted that he was friendly with both Dietze and Carla. At this point, Cummings had not been arrested, nor had he been advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Cummings was subsequently released.
¶ 8 Later that evening, police located Dietze at her apartment and arrested her. Dietze admitted to shooting Glodowski, but told police that meeting Glodowski at the park had been Cummings' idea. Dietze further stated that Cummings had driven her to and from the shooting, and that she had left a backpack containing the pistol used in the shooting in Cummings' vehicle. Officers also obtained surveillance footage of Dietze being dropped off at a gas station near her apartment after the shooting. The vehicle which dropped Dietze at the gas station was similar to Cummings' vehicle.
¶ 9 Following the interrogation of Dietze, police returned to Cummings' home and asked whether he would be willing to return to the station for further questioning. After being assured that he was still not in custody, Cummings agreed. Officers then transported Cummings back to the police station.
¶ 10 Following some preliminary questions, Cummings was advised of his Miranda rights. Cummings agreed, both orally and in writing, to waive those rights and speak with the officers. The officers then questioned Cummings about the inconsistency between his prior statements and the version of events given by Dietze. During that discussion the following exchange took place:
¶ 11 The interrogation continued and Cummings eventually admitted that he had driven Dietze to a location near the park where the shooting had occurred. Cummings further stated that, when Dietze returned to Cummings' car she told him that she had shot someone and asked to be taken home. Cummings admitted that Dietze left her backpack with him but claimed that he found only Dietze's wallet and keys inside. Cummings denied that he knew Dietze intended to shoot Glodowski before driving her to the park. He further denied that he ever possessed the gun used in the shooting. Cummings was then informed that he was being placed on a probation hold.5
¶ 12 Police then questioned Carla regarding the shooting. Carla claimed to be having an affair with Cummings.6 She stated that her husband would never grant her a divorce. Carla explained that she and Cummings planned to have a third person shoot and kill her husband so that they could collect his life insurance policy and then flee together. Carla admitted her part in the plan, which included a contribution of money towards hiring the shooter.
¶ 13 On November 19, 2008, the day following the shooting, police conducted a search of Cummings' home.7 The search uncovered a case and magazine for a .22 caliber Smith & Wesson pistol, and five .22 caliber shell casings hidden in the basement. A subsequent search of the garage revealed the .22 caliber Smith & Wesson pistol used to shoot Glodowski hidden in a box.
¶ 14 On December 2, 2008, Cummings made his initial appearance on a criminal complaint filed by the State. The complaint charged Cummings with Attempted First Degree Intentional Homicide As a Party to the Crime, contrary to Wis. Stat. §§ 939.05, 939.32, and 940.01(1) (2007–08),8 a Class B felony. On December 17, 2008, the court held a preliminary hearing and bound Cummings over for trial.
¶ 15 On January 5, 2009, Cummings was arraigned on the information which charged him with one count of Attempted First Degree Intentional Homicide With a Dangerous Weapon, As a Party to the Crime, contrary to Wis. Stat. §§ 939.05, 939.32, 939.63, and 940.01(1), a Class B felony, and two counts of Aiding a Felon, contrary to § 946.47(1)(a) and (b), a Class G felony. Due to Cummings' prior convictions for passing worthless checks, all three charges included habitual criminal penalty enhancers pursuant to Wis. Stat. § 939.62. Cummings entered pleas of not guilty to all three charges.
¶ 16 On November 25, 2009, Cummings filed a motion to suppress all the statements he made to police prior to being given Miranda warnings and all the statements he made to police after he asked, during his interrogation.
¶ 17 In support of his motion, Cummings asserted that he was “in custody” prior to being given Miranda warnings, and that he had unequivocally invoked his right to remain silent when he asked to be taken to a cell. He therefore argued that allowing the prosecution to use those statements would violate his right against self-incrimination. SeeU.S. Const. amend. V; Wis. Const. Art. I, § 8.
¶ 18 The State opposed Cummings' motion. The State argued that Cummings was not in custody at the time the interrogation began, and was not interrogated until after he had received Miranda warnings. The State further argued that Cummings' statement— —was not an unequivocal invocation of his right to remain silent.
¶ 19 On December 2, 2009, the court held a hearing on Cummings' motion....
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