State v. Delebreau

• Decision Date: 16 June 2015
• Docket Number: No. 2013AP1108–CR.,2013AP1108–CR.
• Citation: 864 N.W.2d 852,362 Wis.2d 542
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Jesse J. DELEBREAU, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

362 Wis.2d 542

864 N.W.2d 852

STATE of Wisconsin, Plaintiff–Respondent

v.Jesse J. DELEBREAU, Defendant–Appellant–Petitioner.

No. 2013AP1108–CR.

Supreme Court of Wisconsin.

Argued June 16, 2015.

Decided June 16, 2015.

For the defendant-appellant-petitioner, there were briefs by Stephen P. Hurley, Marcus J. Berghahn, and Hurley, Burish & Stanton, S.C., Madison, and oral argument by Stephen P. Hurley.

For the plaintiff-respondent, the cause was argued by Jacob J. Wittwer, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

Opinion

DAVID T. PROSSER, J.

¶ 1 This is a review of a published decision of the court of appeals, affirming a judgment of conviction in the Brown County Circuit Court, Mark A. Warpinski, Judge.¹ The case presents questions related to the right to counsel for defendants who have been charged with a crime.

¶ 2 Jesse J. Delebreau (Delebreau) was convicted of one count of delivering heroin (less than three grams), second or subsequent offense, as a repeater and as party to a crime.² The circuit court entered a judgment of conviction following a jury trial in which the State utilized statements Delebreau made to investigators while he was incarcerated at the Brown County Jail. These statements were made after the charge against Delebreau had been filed and after Delebreau had appeared in court with appointed counsel.

¶ 3 The focus of Delebreau's appeal is that the statements he made to police after his initial appearance should have been suppressed in accord with State v. Dagnall, 2000 WI 82, 236 Wis.2d 339, 612 N.W.2d 680. In Dagnall, this court observed that the Sixth Amendment right to counsel attaches when criminal charges are filed. Id., ¶ 52. It then stated that, “[a]fter an attorney represents the defendant on particular charges, the accused may not be questioned about the crimes charged in the absence of an attorney.” Id., ¶ 53.

¶ 4 Since Dagnall, however, the legal landscape has changed. In 2009 the United States Supreme Court issued its decision in Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), holding that a defendant's waiver of his or her Miranda³ rights is sufficient to waive the Sixth Amendment right to counsel, even though Miranda rights are grounded in the Fifth Amendment. Id. at 786–87, 129 S.Ct. 2079. The Court further held that a defendant's waiver need not be presumed invalid simply because the defendant is represented by counsel. Id. at 789, 129 S.Ct. 2079. The Court's holding overruled Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) —on which Dagnall heavily relied—and seriously undercut our holding in Dagnall.

¶ 5 Following Montejo, we addressed the new legal landscape in State v. Forbush, 2011 WI 25, 332 Wis.2d 620, 796 N.W.2d 741. However, our decision in Forbush featured such a marked lack of consensus among the justices that it left Wisconsin law somewhat unclear. Hence, we take this opportunity to clarify the law on waiver of the right to counsel after a defendant has been charged with a crime.

¶ 6 First, we reaffirm the position of a majority of justices in Forbush that Montejo effectively overruled Dagnall by establishing that a waiver of Miranda rights is sufficient to waive the Sixth Amendment right to counsel and that such a waiver is not presumed invalid simply because the defendant is already represented by counsel. Second, we hold that that Article I, Section 7 of the Wisconsin Constitution does not provide greater protections than the Sixth Amendment of the United States Constitution in the context of a waiver of the right to have counsel present during questioning. Accordingly, we affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 7 The relevant facts are undisputed. This case stems from the Brown County Drug Task Force's (the Task Force) use of a confidential informant to arrange for the purchase of drugs. In exchange for not being charged with possession of drug paraphernalia, B.J. (the informant) agreed to act as a confidential informant for the Task Force. On February 21, 2011, the informant arranged a meeting with Christopher Woodliff (Woodliff) to buy crack cocaine and heroin. The informant knew Woodliff through prior drug deals between the two. The Task Force outfitted the informant with a surveillance wire and gave him $200 to purchase drugs from Woodliff.

¶ 8 Once inside Woodliff's home, the informant saw Woodliff, two other men, and a woman. The informant had not met Delebreau before, but he identified him at trial as one of the other men he saw inside Woodliff's home. The informant asked Woodliff for two bags of crack cocaine and two bags of heroin. He gave Woodliff the $200 provided by the Task Force. Woodliff returned $80, then asked Delebreau if he had “any bindles left.” Delebreau replied that he did, and the informant gave him the remaining $80.

¶ 9 After the exchange of money, Woodliff and Delebreau left the room. When they returned, Delebreau handed the informant two baggies of what the informant believed to be heroin. Woodliff provided the informant with the crack cocaine. The informant stayed inside Woodliff's home for about 45 minutes.

¶ 10 Once he left Woodliff's home, the informant met with one of the investigators from the Task Force and turned over the recording equipment along with the four baggies of drugs. The two baggies of heroin were later weighed at the State Crime Laboratory and found to have a combined weight of 0.013 grams.

¶ 11 Delebreau was taken into custody on March 31 on a probation hold. He was held at the Brown County Jail. Sometime between April 7 and April 9, Delebreau sent a note to jail officials requesting to speak with a narcotics investigator in the Task Force about his involvement.

¶ 12 On April 14, Delebreau was charged with the delivery of heroin stemming from the February 21 transaction. That same day, Delebreau made his initial appearance in court⁴ where he was represented by Attorney William M. Fitzgerald, a public defender.⁵

¶ 13 The next day, April 15, Delebreau met with investigator Roman Aronstein from the Task Force at the jail. Aronstein later testified that he was the person who previously referred charges related to Delebreau's involvement in the February 21 incident to the District Attorney's office but that he was unaware of the status of those charges. Aronstein also testified that at the time of the meeting he believed that Delebreau was at the jail on a probation hold. Aronstein did not check with the District Attorney's office about his criminal referral and he did not ask Delebreau whether he had actually been charged. Before beginning the interview, Aronstein activated the audio/video equipment at the jail and read Delebreau his Miranda rights. Delebreau waived his rights and did not ask for counsel. In this interview, Delebreau admitted to having sold drugs.⁶ However, Delebreau could not remember anything about the February incident even after being shown video of the transaction.

¶ 14 Aronstein returned three days later (April 18) to interview Delebreau a second time. Again, Aronstein did not check whether charges had been filed against Delebreau or whether he had counsel. Before the interview took place, Aronstein turned on the audio/video equipment and read Delebreau his Miranda rights. Aronstein testified that Delebreau stated during the interview that “he wasn't going to be able to beat these charges” and that “he was going to end up going to prison anyway so he might as well just cooperate with law enforcement.” Aronstein testified that he believed from this exchange that Delebreau had no intention of meeting with an attorney. Aronstein had prepared a statement for Delebreau, which Delebreau signed. The statement acknowledged that Delebreau was the person in the video and based on the transaction shown, he must have been the one who sold heroin to the informant. However, Delebreau claimed he had no memory of the incident.

¶ 15 The two interviews were used as evidence in Delebreau's trial. Before the trial, Brown County Circuit Judge Mark A. Warpinski denied Delebreau's motion to suppress the statements he made in the interviews. The court of appeals denied Delebreau's petition for leave to appeal the order denying the suppression motion because Delebreau failed to meet the criteria for an interlocutory appeal.

¶ 16 At trial, a jury found Delebreau guilty of delivery of heroin, and the court sentenced him to eight years of imprisonment consisting of four years of initial confinement and four years of extended supervision. The court of appeals affirmed Delebreau's conviction and the denial of his suppression motion, determining that Montejo controlled and that Delebreau's Miranda waiver was thus sufficient to waive his right to counsel. State v. Delebreau, 2014 WI App 21, 352 Wis.2d 647, ¶ 19, 843 N.W.2d 441.

¶ 17 Delebreau petitioned this court for review, which we granted on May 22, 2014.

II. STANDARD OF REVIEW

¶ 18 Whether Delebreau's right to counsel was violated is a question of constitutional fact. When reviewing issues of constitutional fact, we undertake a two-step analysis. State v. Martwick, 2000 WI 5, ¶ 17, 231 Wis.2d 801, 604 N.W.2d 552. First, we accept the circuit court's findings of evidentiary or historical fact in a suppression matter unless they are clearly erroneous. Id., ¶ 18. Second, we independently review the application of constitutional principles to the facts. Id., ¶ 17.

III. LEGAL BACKGROUND

¶ 19 We begin our analysis with a discussion of the legal background surrounding the Sixth Amendment right to counsel.⁷

¶ 20 On April 1, 1986, the United States Supreme Court issued its decision in Jackson. Jackson had been convicted of second-degree murder based, in part, on a statement he made to police following his request at arraignment that counsel be appointed for him. Jackson, 475 U.S. at 628, 106 S.Ct. 1404. Police had gone to see Jackson after the arraignment, read...