State v. Fischer

• Decision Date: 18 December 2002
• Docket Number: No. 02-0147-CR.,02-0147-CR.
• Citation: 2003 WI App 5,656 N.W.2d 503,259 Wis.2d 799
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Richard K. FISCHER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

259 Wis.2d 799

2003 WI App 5

656 N.W.2d 503

STATE of Wisconsin, Plaintiff-Respondent, v. Richard K. FISCHER, Defendant-Appellant.¹

No. 02-0147-CR.

Court of Appeals of Wisconsin.

Oral argument November 12, 2002.

Decided December 18, 2002.

On behalf of the defendant-appellant, the cause was submitted on the brief of and oral argument by Mark S. Rosen of Rosen and Holzman, Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Sally L. Wellman, assistant attorney general.

Before Nettesheim, P.J., Anderson and Snyder, JJ.

¶ 1. SNYDER, J.

Richard K. Fischer appeals from a judgment of conviction for burglary as a party to a crime, contrary to WIS. STAT. §§ 943.10(1)(a) and 939.05(1) (1999-2000).² Fischer argues that the trial court erred in denying his suppression motion because he was never read his Miranda³ rights prior to the taking of his statements, that he unequivocally asserted his right to an attorney and that the detective's conversation with him was the functional equivalent of interrogation. We conclude that Fischer's request for an attorney was equivocal and ambiguous. Further, we conclude that the ensuing conversation between him and police detectives was not the functional equivalent of interrogation. We therefore affirm the judgment of conviction.

FACTS

¶ 2. In January 1999, while Fischer was in custody in Milwaukee county on other matters, he was being investigated for two burglaries in Brookfield, Wisconsin, at F&F Tire World and Goodyear Tire. On January 28, 1999, detective Tom Vento and another detective from the City of Brookfield Police Department arrived at an interview room at the Milwaukee county jail to interview Fischer. Vento identified himself and the other detective to Fischer and explained to him that they were there to talk to him about the Brookfield burglaries. Fischer said that Vento was the third or fourth police department to talk to him that day and he was not interested in accepting anything Vento had to say as truthful. Fischer indicated he was distrustful and skeptical of the police. Fischer explained that he was skeptical because Vento could not authorize or endorse any type of deal for him whereby the Brookfield and Milwaukee county cases would be combined. Vento informed Fischer that a deal to consolidate the Brookfield and Milwaukee county cases "wasn't going to happen" and that Vento wanted to talk to Fischer about the Brookfield cases.

¶ 3. Vento then asked Fischer if he would be willing to talk about the Brookfield cases; Fischer responded that if the officers read him his rights, he would not answer any questions and would request an attorney. Fischer said he was not sure the detectives could work out a deal for him and he did not want "to say anything that's going to get [him] in trouble until [he] find[s] out what's going on."

¶ 4. Because Vento felt the interview was "likely going to come to a very quick close," he explained to Fischer the position of the Brookfield police department. Vento informed Fischer that he was investigating two burglaries based upon evidence taken from Fischer's footwear; after preliminary comparisons of the footwear he was wearing on the night he was arrested in Milwaukee county and evidence taken from the scene of the Brookfield crimes, Vento was "fairly confident" Fischer was responsible for the burglaries and "it shouldn't become a surprise to him" if he were charged in Waukesha county for these burglaries. Fischer then began to ask Vento questions about the specifics of the burglaries.

¶ 5. Fischer asked Vento where the Brookfield police had found his shoe prints. Vento told Fischer that at Goodyear, there was an impression of a shoe where the plexiglass had been kicked in. Fischer then called Vento a liar, stating that the plexiglass was never kicked in but, in fact, had been pushed in with his hand and that the footwear impression would have come from his shoe when he stepped inside the building. Vento then told Fischer he was not sure whether the plexiglass had been kicked in or stepped on but only knew there was a footwear impression similar to his shoes that would be sent to the crime lab for a comparison.

¶ 6. Fischer then asked Vento what had been reported missing from the burglaries. Vento informed Fischer that some property had been taken from a car parked in the parking lot and from inside Goodyear, including a television and some stereo equipment. Vento then explained to Fischer that if Fischer was responsible for the crimes, "what typically helps in these types of cases . . . is to make victims feel less like victims. And one of the ways to do that is to get some of the property back." Fischer denied responsibility for the property taken from the car and then asserted that, hypothetically, if he were responsible, he would not be able to return any of the property because it would have been sold for drugs. Fischer further stated that a second person had been there.

¶ 7. Fischer then asked what had been reported missing from the burglary at F&F Tire World. Vento informed Fischer that some tools had been reported stolen. Fischer responded, saying he doubted that the person reporting the crime was being truthful because no tools were taken, that "he had all of his own tools with the receipts and could show a proper purchase, and he had no reason to take tools."

¶ 8. Vento and Fischer then talked extensively about Fischer's drug habit and how Fischer was hoping to get some help for this out of the criminal proceedings. At several points during the meeting, Vento told Fischer that since he had already provided some information, he should just "get a statement on the record and put this to rest." Fischer then expressed concern for being treated fairly and declined to provide an official statement; Fischer did not want his rights read to him because he would then ask for an attorney. Fischer also indicated he was tired of talking, he wanted to consult with an attorney and he wanted Vento to come back the next day. Fischer named an attorney and asked to call Vento the following day. Vento informed Fischer that "if he made a phone call it wouldn't be accepted because our building doesn't accept collect calls and that if he wanted to continue this he should have the attorney call."

¶ 9. Near the end of the conversation, Fischer also indicated that during the Goodyear burglary, he saw an officer responding as he was leaving. Vento asked Fischer what he was referring to and Fischer indicated that at Goodyear, he had seen a female officer coming across Bluemound Road from Brookfield Square shopping mall. Vento informed Fischer that he would be notified of any referral of charges, that the detectives might come back to see him or that Fischer's attorney should call them. The entire meeting took about an hour and one-half and during that entire time Fischer was never advised of his Miranda rights.

¶ 10. On October 18, 1999, Fischer was charged with two counts of burglary as a party to a crime. Fischer filed a motion to suppress the statements he provided to Vento, alleging that he was not properly provided with his Miranda warnings. The suppression motion was denied.

¶ 11. On September 7, 2000, Fischer pled no contest to the Goodyear burglary and the other burglary count was dismissed and read-in for sentencing. On November 9, 2000, Fischer was sentenced to eighteen months in prison, consecutive to any other sentences, and was denied sentence credit. Fischer appeals.

DISCUSSION

[1, 2]

¶ 12. The first issue before us concerns the sufficiency of Fischer's invocation of the right to counsel. This is a question of constitutional fact we review under a two-part standard. State v. Jennings, 2002 WI 44, ¶ 20, 252 Wis. 2d 228, 647 N.W.2d 142. We must uphold the trial court's findings of historical or evidentiary fact unless they are clearly erroneous. Id. However, we independently review the trial court's application of constitutional principles to those facts. Id. The legal sufficiency of a defendant's invocation of the right to counsel is determined by the application of a constitutional standard to historical facts. Id. at ¶ 25.

¶ 13. Fischer argues that when he told the police that if they read him his rights, he would not answer any questions and would request an attorney, he was clearly and unequivocally demanding an attorney. We disagree.

¶ 14. The constitutional standards applicable to the case at hand originate from Miranda v. Arizona, 384 U.S. 436 (1966),Edwards v. Arizona, 451 U.S. 477 (1981), and Davis v. United States, 512 U.S. 452 (1994), and were thoroughly discussed in Jennings, 2002 WI 44 at ¶¶ 26-36. In Miranda, the United States Supreme Court recognized the right to the presence of counsel during custodial interrogation to safeguard the right against compulsory self-incrimination under the Fifth and Fourteenth Amendments. Jennings, 2002 WI 44 at ¶ 26.

¶ 15. In Edwards, the Supreme Court held that the police must immediately cease questioning a suspect who clearly invokes the Miranda right to counsel. Jennings, 2002 WI 44 at ¶ 26. The Edwards Court concluded that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." Jennings, 2002 WI 44 at ¶ 26 (citing Edwards, 451 U.S. at 485). While the Edwards Court recognized "a bright-line, no-further-questioning rule applicable to clear and unequivocal requests for counsel during custodial interrogation, it did not address the subject of requests for counsel that were not so clear and unequivocal. Thirteen years later it did so, in Davis." Jennings, 2002 WI 44 at ¶ 27.

¶ 16. In Davis, the Supreme Court held that a suspect must clearly and unambiguously request counsel in order for the Edwards ...