State v. Dagnall

• Decision Date: 27 May 1999
• Docket Number: No. 98-2746-CR.,98-2746-CR.
• Citation: 228 Wis.2d 495,596 N.W.2d 482
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Todd D. DAGNALL, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

228 Wis.2d 495

596 N.W.2d 482

STATE of Wisconsin, Plaintiff-Respondent,¹ v. Todd D. DAGNALL, Defendant-Appellant.

No. 98-2746-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 13, 1999.

Decided May 27, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John D. Lubarsky, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, with James M. Freimuth, assistant attorney general.

Before Eich, Roggensack and Deininger, JJ.

EICH, J.

Todd D. Dagnall appeals from a judgment convicting him of first-degree intentional homicide. He argues that the trial court erred in denying his motion to suppress certain statements he made to police officers while being interrogated, claiming the statements were obtained in violation of his Sixth Amendment right to counsel. We agree with Dagnall that he properly invoked his right to counsel when initially contacted by the officers and that, as a result, any subsequent questioning was improper. We therefore reverse the judgment and remand to the circuit court with directions to grant Dagnall's motion to suppress the statements, and for further proceedings.

In October 1997, Dagnall was charged with first-degree intentional homicide in Dane County, and a warrant was issued for his arrest. He was apparently arrested in Florida at the request of the Dane County Sheriff's Department, and two Dane County detectives, Kevin Hughes and Nick Tomlin, traveled to Florida to interview him and return him to Wisconsin. Hughes was aware, before leaving for Florida, that the Sheriff's Department had received a letter from Madison Attorney James Connors, indicating that he was representing Dagnall and was aware that he had been arrested in Florida. Connors's letter concluded by stating that he did not want anyone to question Dagnall "concerning criminal matters and, more particularly, the homicide in which [Dagnall] is a suspect," unless he (Connors) was present.

Upon their arrival in Florida, the detectives met with Dagnall in jail. When Hughes identified himself and told Dagnall that he was there "regarding the homicide of Norman Gross," Dagnall responded: "My lawyer told me that I shouldn't talk to you guys." Hughes then told Dagnall that they had received information from others implicating Dagnall in the murder and "were interested in obtaining his account." Hughes said it was up to Dagnall whether he wanted to give them a statement, and read the Miranda warnings to him. According to Hughes, when he again asked Dagnall to speak with them he "basically [said] that he would talk to us until he felt that he would be at a point where he would [incriminate] himself." The detectives questioned Dagnall for slightly over an hour, eliciting inculpatory information from him. On at least one other occasion while in, or returning from, Florida, Dagnall made further incriminating statements in response to questioning by Hughes.

Dagnall moved to suppress all such statements, arguing that he had invoked his right to counsel when he first met with the detectives and that, as a result, they were barred from questioning him further. Following an evidentiary hearing, the circuit court denied the motion, concluding in a detailed and thoughtful decision from the bench, that Dagnall had not personally and unequivocally invoked his right to counsel.² Dagnall subsequently pled no contest to the charge, and now appeals the court's denial of his suppression motion.

[1]

The Sixth Amendment provides a person who has been charged with a crime the right to counsel at all critical stages of the proceedings. Massiah v. United States, 377 U.S. 201 (1964). The right attaches upon formal commencement of prosecution—the filing of the complaint or issuance of a warrant. State v. Harris, 199 Wis. 2d 227, 235 n.3, 544 N.W.2d 545, 548 (1996); Jones v. State, 63 Wis. 2d 97, 105, 216 N.W.2d 224, 228 (1974). Once the right has attached and been asserted, all further uncounseled police-initiated interrogation concerning the charged crime is barred, and any subsequent waivers on the part of the accused are presumed to be invalid. See Michigan v. Jackson, 475 U.S. 625 (1986)

. In other words, the State must honor the accused's invocation of the right: It can't prevent him or her from obtaining the assistance of counsel, and it has an affirmative obligation not to act in any manner that would circumvent the protections of the Sixth Amendment.

[T]he Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached. However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to counsel present in a confrontation between the accused and the state agent.

Maine v. Moulton, 474 U.S. 159, 176 (1985) (citation omitted).

There is no dispute that Dagnall's Sixth Amendment right to counsel attached when the complaint was filed in Dane County prior to his interrogation by the detectives. The parties continue to disagree, however, whether Dagnall "asserted" that right. Dagnall argues that he did so "by retain[ing] counsel prior to the time he was questioned by [the] detectives and after he was formally charged with the [homicide]," and that his counsel's letter, coupled with his "my lawyer" statement, "put the detectives on notice that [he] had already secured counsel" so as to bar further uncounseled police-initiated questioning.

As it did in circuit court, the State takes the position that the Sixth Amendment right to counsel must be invoked by the accused personally and unequivocally, and that neither his lawyer's letter nor Dagnall's own initial statement to the detectives meet those tests. The State would have us consider each event separately and in isolation from each other, maintaining: (1) that Connors's letter cannot be considered Dagnall's personal invocation of the right to counsel because, in essence, it wasn't "co-signed" by Dagnall; and (2) that his "my lawyer" statement to the detectives was not an unequivocal assertion or invocation of the right.

We begin by noting our disagreement with the State's approach, which is that we should consider the primary evidentiary points in the case—the Connors letter (and the detectives' awareness of it) and Dagnall's initial statement to the detectives—in isolation. In Davis v. United States, 512 U.S. 452 (1994), a case to which the State has referred us (and which we discuss in greater detail below), the Supreme Court framed the applicable inquiry in terms of what a reasonable police officer would understand under "the circumstances [of the case]." Id. at 459. It follows that the primary evidentiary points in the case bearing on Dagnall's invocation of the right to counsel—the Connors letter (and the detectives' awareness of it) and Dagnall's initial statement to them—are to be considered not in isolation, but together.

As indicated, the State maintains that because the Connors letter neither recites that Dagnall himself had retained or "accepted" Connors's services, nor contains Dagnall's signature as a co-signer, we must conclude that he never personally invoked his right to counsel; and it quotes at length from several Wisconsin and out-of-state cases—offering little expository or explanatory comment—in support of the underlying proposition: that the defendant must personally invoke the right. We have read the cases and consider them readily distinguishable in that they all involve defendants who either: (a) had not retained and never asked for a lawyer;³ (b) had no knowledge that a lawyer had been retained for him;⁴ or (c) had done no more than ask a relative to tell the police to contact a lawyer.⁵ In this case, in contrast, Dagnall's initial statement to the detectives—who were concededly aware of the Connors letter—establishes that he had engaged Connors's assistance, communicated with him about the crime and the possible charges, and received advice not to talk to the police. The detectives also knew, of course, that Connors had specifically requested that the officers not question Dagnall outside his presence—a fact the circuit court, while deciding in the State's favor, found troubling.⁶

The State next argues that the facts of this case do not establish that Dagnall had "unequivocally" or "unambiguously" invoked his right to counsel, as it maintains the law requires. The State concedes at the outset, as it must, that there are few, if any, Sixth Amendment (post-charging) cases setting forth the particulars of what is required to invoke the right to counsel. It then discusses several cases involving Fifth Amendment (pre-charging) right-to-counsel claims where some courts have referred to the need to have an "unambiguous" or "unequivocal" invocation on the part of the accused; and it says there is "no principled reason" not to apply those cases to Dagnall's Sixth Amendment claim. The State qualifies that statement, however, when it goes on to say that the "unequivocal" or "unambiguous" requirement is applicable only to the initial aspect of the inquiry: whether "in the first instance" a charged defendant has invoked the right to counsel. The State continues: "[I]t is only after a charged defendant's reference to counsel is determined to be ambiguous that some further accommodation to the Sixth Amendment may be necessary—in effect, that clarifying questions [by the officers] may be required." It thus appears that, in the State's view at least, if a defendant's invocation of the right to counsel is...