State v. Hambly

• Decision Date: 07 February 2008
• Docket Number: No. 2005AP3087-CR.,2005AP3087-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Scott M. HAMBLY, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

745 N.W.2d 48

2008 WI 10

STATE of Wisconsin, Plaintiff-Respondent, v. Scott M. HAMBLY, Defendant-Appellant-Petitioner.

No. 2005AP3087-CR.

Supreme Court of Wisconsin.

Argued September 11, 2007.

Decided February 7, 2008.

For the defendant-appellant-petitioner a brief was filed by Martha K. Askins, Office of the State Public Defender, Madison, and oral argument by Martha K. Askins.

For the plaintiff-respondent the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was J.B. Van Holien, attorney general.

¶ 1 SHIRLEY S. ABRAHAMSON, C.J

The defendant, Scott M. Hambly, seeks review of a published court of appeals decision affirming a judgment of conviction entered by the Circuit Court for Washington County, Patrick J. Faragher, Judge.¹ The defendant was convicted of one count of delivering cocaine contrary to Wis. Stat. § 961.41(1)(cm) (2001-02). We affirm the decision of the court of appeals refusing to suppress the defendant's inculpatory statements and affirming the conviction.

¶ 2 The issue on review is whether the circuit court erred in denying the defendant's motion to suppress inculpatory statements he made to a law enforcement officer while he was in custody. The defendant contends that the inculpatory statements were obtained in violation of his invocation of his Fifth Amendment Miranda² right to counsel. More specifically, the defendant raises three arguments supporting suppression of his statements: (1) He effectively invoked his Fifth Amendment Miranda right to counsel by requesting counsel after being taken into custody and before he was interrogated; (2) The law enforcement officer's statements to him after he invoked his right to counsel constituted interrogation; and (3) In signing the Miranda waiver form he did not voluntarily, knowingly, and intelligently waive his right to counsel.

¶ 3 We conclude as follows:

(1) The defendant effectively invoked his Fifth Amendment Miranda right to counsel when he requested counsel while he was in custody and before the law enforcement officer interrogated him under both a standard requiring only that a suspect be in custody when the request for counsel is made and a standard requiring that interrogation be "imminent or impending when the request for counsel is made." An invocation of the Fifth Amendment Miranda right to counsel is a defendant's request for the assistance of an attorney "in dealing with custodial interrogation by the police."³

(2) The law enforcement officer's statements to the defendant after he effectively invoked his Fifth Amendment Miranda right to counsel and before he was given the Miranda warnings did not constitute interrogation by the officer.

(3) After the defendant effectively invoked his Fifth Amendment Miranda right to counsel, he initiated communication with the law enforcement officer and then voluntarily, knowingly, and intelligently waived his right to counsel, rendering the inculpatory statements admissible.

¶ 4 The court is divided on the question whether to adopt a temporal standard to determine whether a suspect in custody has effectively invoked his or her Fifth Amendment Miranda right to counsel. Three justices, Justices Prosser, Roggensack, and Butler, adopt the standard that a suspect may effectively invoke the Fifth Amendment Miranda right to counsel when a suspect is in custody and has made "an unequivocal request to speak with an attorney" even before interrogation is imminent or impending. Justice Roggensack's concurrence, ¶ 106.⁴

¶ 5 Three justices, Justices Bradley and Crooks and the author of this opinion, conclude that they need not, and do not, address whether the appropriate temporal standard to adopt is the "anytime in custody" standard or the "imminent or impending interrogation" standard. Justice Ziegler did not participate in this case.

¶ 6 Accordingly, we affirm the decision of the court of appeals affirming the circuit court's order refusing to suppress the defendant's inculpatory statements and affirming the conviction.

I

¶ 7 We briefly summarize the facts relating to the defendant's inculpatory statements to the officer. Detectives Rindt and Clausing, both of the Washington County Sheriffs Department, approached the defendant in a parking lot outside his apartment and attempted to convince him to speak to them without their taking him into custody.

¶ 8 The defendant repeatedly refused to speak with the detectives. Detective Rindt first requested that the defendant meet with the detectives at the police station to discuss several drug transactions in which he was involved. The defendant said he did not want to go to the station. Rindt then asked whether they could talk inside the defendant's residence. The defendant refused this request as well. Rindt then told the defendant that he and Clausing were investigating drug transactions and informed the defendant that they wanted to speak with him about options available to him. Rindt again asked the defendant if he would converse with the detectives somewhere. The defendant refused this final request, telling the detectives to come back another day.

¶ 9 Rindt then told the defendant that he was under arrest, handcuffed him, and began leading him to the squad car. As Rindt and the defendant walked to the squad car, the defendant said that he wanted to speak with an attorney. Rindt put the defendant in the back of the car and told him that he could call an attorney once they arrived at the Washington County Jail. Rindt then waited with the defendant in the car while Clausing searched the defendant's vehicle incident to arrest. No evidence was produced at trial from this search.

¶ 10 While in the squad car, the defendant told Rindt that he did not understand why he was under arrest. Rindt responded that the defendant had sold cocaine to an informant, Mychal Meyer, on three occasions and that Meyer had been cooperating with the police during those transactions. The defendant again stated he did not understand what was going on and told Rindt that he wanted to speak to him and to find out what his options were.

¶ 11 Rindt read the defendant his Miranda warnings. Rindt testified that the defendant said he understood his rights, did not have any questions, and wanted to speak with Rindt about the drug transactions. Rindt then removed the defendant's handcuffs and placed him in the front seat of the squad car. Rindt asked the defendant to review the Miranda waiver of rights form, which the defendant did. The defendant then signed a Miranda waiver form.

¶ 12 Rindt interviewed the defendant for approximately one hour. During the interview, the defendant admitted to Rindt that he had sold cocaine to Meyer on several occasions. Rindt spent most of the interview determining whether the defendant would cooperate with the police. Deciding that the defendant would not cooperate, Rindt once again handcuffed the defendant, placed him in the back of the squad car, and took him to jail.

¶ 13 The State charged the defendant with three counts of delivering cocaine to Meyer. The defendant moved to suppress the statements he made to Rindt in the squad car. The circuit court denied this motion after a hearing. The circuit court concluded that the defendant had unequivocally invoked his Fifth Amendment Miranda right to counsel and that under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), all questioning of the defendant had to cease. In Edwards, the United States Supreme. Court held that once an accused has "expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."⁵ Nevertheless, even though the defendant requested counsel, the circuit court refused to suppress the defendant's inculpatory statements because the defendant initiated a substantive discussion with the law enforcement officer. The circuit court also found that the defendant's waiver of his Miranda rights was knowing and intelligent.

¶ 14 The jury found the defendant guilty of one count of delivering five grams or less of cocaine and not guilty of one charge of delivering one gram or less of cocaine. The jury divided on a second charge of delivering one gram or less of cocaine.

¶ 15 The defendant appealed his conviction, arguing that the circuit court had erred in denying his motion to suppress the statements he made to Rindt. The court of appeals affirmed the circuit court's order denying suppression and affirmed the conviction.

II

¶ 16 We consider first the State's argument that the defendant's request for counsel did not constitute an effective invocation of his Fifth Amendment Miranda right to counsel. Whether the defendant effectively invoked his Fifth Amendment Miranda right to counsel is a question of constitutional fact that this court decides under a two-part test.⁶ This court will uphold a circuit court's findings of historical or evidentiary fact unless they are clearly erroneous.⁷ This court determines the application of constitutional principles to those evidentiary facts independently of the circuit court and court of appeals but benefits from the circuit court's and court of appeals' analyses.⁸

¶ 17 The State contends that the instant case raises the question whether a suspect can anticipatorily invoke his Fifth Amendment Miranda right to counsel. The State answers this question in the negative and asserts that a criminal defendant does not effectively invoke his Fifth Amendment Miranda right to counsel unless he is both in custody and is being interrogated.⁹

¶ 18 The State rests its position on language in a footnote in McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), in which the United States Supreme Court declared, "We have in fact never held that a...