State v. Forbush

• Decision Date: 29 April 2011
• Docket Number: No. 2008AP3007–CR.,2008AP3007–CR.
• Citation: 2011 WI 25,796 N.W.2d 741,332 Wis.2d 620
• Parties: STATE of Wisconsin, Plaintiff–Appellant,v.Brad E. FORBUSH, Defendant–Respondent–Petitioner.
• Court: Wisconsin Supreme Court

332 Wis.2d 620

796 N.W.2d 741

2011 WI 25

STATE of Wisconsin, Plaintiff–Appellant,

v.Brad E. FORBUSH, Defendant–Respondent–Petitioner.

No. 2008AP3007–CR.

Supreme Court of Wisconsin.

Argued Sept. 14, 2010.Decided April 29, 2011.

For the defendant-respondent-petitioner, there were briefs filed by Craig Mastantuono, Rebecca M. Coffee, and Mastantuono Law Office, S.C., Milwaukee, and oral argument by Mr. Mastantuono.For the plaintiff-appellant, there was a cause argued by Aaron R. O'Neil, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.An amicus curiae brief was filed by Nicholas L. Chiarkas, state public defender and Colleen D. Ball, assistant state public defender.PATIENCE DRAKE ROGGENSACK, J.

¶ 1 We review a published decision of the court of appeals ¹ reversing the circuit court's ² order granting Brad Forbush's (Forbush) motion to suppress statements he made during a police interrogation. The central issue presented is whether the United States Supreme Court's decision in Montejo v. Louisiana, 556 U.S. ––––, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), requires us to overrule Wisconsin precedent that established the parameters of a charged defendant's right to counsel in Wisconsin when a defendant, who has affirmatively invoked his constitutional right to counsel by retaining and receiving the services of counsel on pending charges, is subjected to questioning by law enforcement.

¶ 2 Forbush contends that his right to counsel under the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution was violated by police interrogation because he had affirmatively invoked his right to counsel and counsel was not present when he was asked to waive the right he previously invoked. I agree. For the reasons discussed below, I conclude that in the factual context herein presented, Montejo does not sanction the interrogation that occurred. We so conclude because Forbush's right to counsel under the federal or state constitution had attached and was invoked affirmatively by Forbush before the investigator's questioning was initiated. I also conclude that the circuit court's finding that the investigator knew Forbush had secured legal counsel for the pending charges is not clearly erroneous. Furthermore, Forbush was not required to “re-invoke” his right to counsel when the investigator initiated interrogation. Accordingly, Forbush's statements must be suppressed, and we reverse the decision of the court of appeals.³

I. BACKGROUND

¶ 3 On May 8, 2008, the State of Wisconsin filed a criminal complaint against Forbush charging him with attempted second-degree sexual assault and false imprisonment. A warrant was issued for his arrest. Forbush was arrested in Michigan and made a court appearance there with an attorney he retained for these charges. His brother, Scott Forbush, a licensed Michigan attorney (Attorney Forbush), provided legal representation to Forbush. With the advice of counsel, Forbush waived extradition proceedings. He was transported to Wisconsin in the early morning hours of May 16, 2008. The State stipulated that the district attorney's office was notified that Forbush was represented by counsel prior to Detective Cory Norlander's (Norlander) interrogation of Forbush. Attorney Forbush, as Forbush's lawyer for the pending charges, had contact with Detective Ethan Weber, of the Sheboygan County Sheriff's Department.

¶ 4 On the morning of May 16, Forbush was questioned by Norlander, also of the Sheboygan County Sheriff's Department. Norlander had reviewed Detective Weber's reports prior to his interrogation of Forbush. The interrogation was videotaped. Norlander read Forbush the Miranda⁴ warnings. After 28 minutes of inquiry regarding whether Forbush was willing to waive his right to have counsel present, Norlander repeatedly told Forbush that he would like to hear his side of the story; that it was usually better if law enforcement knew both sides of the story; that Norlander knew only one side of the story, but that he could not hear Forbush's side unless Forbush signed the waiver of rights form. Forbush subsequently gave a verbal waiver and completed a waiver of rights form. Throughout the reminder of the interrogation, Forbush made potentially incriminating statements.

¶ 5 Immediately following the interrogation, Forbush was taken to his initial appearance. Attorney Rebecca Coffee, an attorney with the Mastantuono Law Office, who together with Attorney Forbush has represented Forbush on these charges throughout this case, was present at the initial hearing.

¶ 6 Before trial, Forbush moved to suppress his statements to Norlander on the grounds that his right to counsel was violated ⁵ because he was represented by counsel on these charges at the time of the interrogation. Specifically, Forbush asserted that he was represented both by Attorney Forbush, a Michigan attorney, and by Attorney Craig Mastantuono, a Wisconsin attorney, at the time of his interrogation.⁶ Because of his representation by counsel on these charges and because he had been formally charged, Forbush argued that any statements elicited by Norlander violated his Sixth Amendment and Article I, Section 7 right to counsel.

¶ 7 The circuit court found that law enforcement knew Forbush was represented by counsel on the pending charges and concluded that the State had violated Forbush's Sixth Amendment right to counsel. The circuit court granted Forbush's motion, barring the State from introducing Forbush's statements to Norlander.

¶ 8 The State appealed and the court of appeals reversed the suppression order. State v. Forbush, 2010 WI App 11, ¶ 2, 323 Wis.2d 258, 779 N.W.2d 476. The court of appeals concluded that sometime after the circuit court's decision, the United States Supreme Court in Montejo overruled Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), and held that the Sixth Amendment does not prevent police from questioning charged and represented defendants. Forbush, 323 Wis.2d 258, ¶ 2, 779 N.W.2d 476. Because the court of appeals concluded that the circuit court's holding was based entirely on this court's conclusions in State v. Dagnall, 2000 WI 82, 236 Wis.2d 339, 612 N.W.2d 680, and that Dagnall was effectively overruled by Montejo, the court of appeals reversed the circuit court's suppression order. Forbush, 323 Wis.2d 258, ¶¶ 2, 13, 779 N.W.2d 476.

¶ 9 We granted review and now reverse the court of appeals.

II. DISCUSSION

A. Standard of Review

¶ 10 At issue is whether the United States Supreme Court's decision in Montejo requires us to overrule Wisconsin law that established the parameters of a defendant's right to counsel after he has affirmatively invoked his Sixth Amendment right to counsel by retaining and receiving the services of counsel on the pending charges. This issue “involves the application of constitutional principles to historical facts.” State v. Hoppe, 2003 WI 43, ¶ 34, 261 Wis.2d 294, 661 N.W.2d 407. We have adopted a two-part standard of review for questions of constitutional fact. Id. We uphold the circuit court's findings of historical or evidentiary fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748. We review independently the application of constitutional principles to the facts found. State v. Ward, 2009 WI 60, ¶ 17, 318 Wis.2d 301, 767 N.W.2d 236.

B. Right to Counsel

¶ 11 On appeal, Forbush argues that the interrogation by Norlander violated his right to counsel. Forbush contends that he invoked his right to counsel under the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution when he affirmatively requested and received representation of counsel, Attorney Forbush and the Mastantuono Law Office, for these charges. Accordingly, Forbush argues that he was represented by counsel when Norlander questioned him and that the State was aware of this representation. The State contends that Montejo has removed the restrictions on questioning a represented defendant unless he requests counsel at the time of questioning.

¶ 12 I begin my discussion with the framework for the right to counsel that has been employed during interpretations of the United States and Wisconsin Constitutions, in order to show the contours of the right when Forbush was interrogated. I then examine the rule of law established by the Supreme Court's decision in Montejo. Finally, I discuss the current viability of the pre- Montejo standards in Wisconsin and apply the applicable law to Forbush.

a. General framework

¶ 13 The Sixth Amendment guarantees that “the accused shall enjoy ... the Assistance of Counsel for his defence.” ⁷ Similarly, Article I, Section 7 of the Wisconsin Constitution guarantees that “[i]n all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel.” ⁸ The right to counsel is a fundamental right guaranteed to criminal defendants in this country. Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The United States Supreme Court has declared that the right to counsel:

is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.... It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.Id. at 462–63, 58 S.Ct. 1019. The Sixth Amendment “guarantees the accused ... the right to rely on counsel as a ‘medium’ between him and the State.” Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). “The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our...