State v. Markwardt

• Decision Date: 31 October 2007
• Docket Number: No. 2006AP2871-CR.,2006AP2871-CR.
• Citation: 2007 WI App 242,742 N.W.2d 546
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Heather A. MARKWARDT, Defendant-Respondent.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

742 N.W.2d 546

2007 WI App 242

STATE of Wisconsin, Plaintiff-Appellant, v. Heather A. MARKWARDT, Defendant-Respondent.^†

No. 2006AP2871-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs August 30, 2007.

Opinion Filed October 31, 2007.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Marguerite M. Moeller, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Richard Hahn of Holden & Hahn, S.C., Sheboygan.

Before BROWN, C.J., ANDERSON, P.J., and NETTESHEIM, J.

¶ 1 ANDERSON, P.J

In this case, Heather A. Markwardt was advised of her Miranda¹ rights and waived them at the outset of a police interrogation. One hour and eleven minutes into the interrogation, after being repeatedly accused of lying, Markwardt exclaimed, "Then put me in jail. Just get me out of here. I don't want to sit here anymore, alright? I've been through enough today." The circuit court held that this statement was an unequivocal announcement that Markwardt now wished to exercise her right to remain silent. While it is reasonable to conclude that this was such an invocation, it would also have been reasonable to conclude that her statement was just part of the "thrust-and-parry" going on between her and her interrogator in regard to the interrogator's claims that she was lying. Because more than one reasonable inference can be drawn from Markwardt's statement, the law requires that it not be considered an "unequivocal" invocation of the right to remain silent. We therefore reverse. Also, contrary to the circuit court's conclusion, we hold that Markwardt's statements to the interrogator were voluntarily made. We reverse and remand with directions.

Facts

¶ 2 The following facts are not in dispute.² At 1:50 p.m. on March 22, 2006, Sheboygan police received a report of a shooting at 1623 Sibley Court in the city of Sheboygan. The first officers to arrive saw a female, later identified as twenty-two-year-old Trisha L. Bergemann, lying on her back in an upstairs bedroom, unresponsive but breathing. The officers observed an apparent bullet hole on the right upper portion of her skull. Also present at the house were Emily Butler, who was tending to Trisha, Laura Butler, Travis Butler and Emily's young children.

¶ 3 Travis told police that Trisha was his brother James Butler's girlfriend. Travis said Trisha and James had been in an upstairs bedroom of the residence when he heard "a bang" and a "small shriek" coming from upstairs. Travis said he heard Markwardt say, "Why did you do that?" Travis said he went to the upstairs bedroom and saw Emily holding a towel to Trisha's head. Travis then called 911.³

¶ 4 Emily told police she was downstairs in the residence and heard an argument taking place upstairs. Emily said she did not hear a shot, but heard a "thud" like someone thrown to the floor. She said as she went upstairs, James Butler was coming down the stairs holding a handgun that, based on Emily's description, was a black semi-automatic handgun. Emily said that James banged the gun against a wall making a statement about the gun jamming. Emily said James left the house and she thought he left with Markwardt.

¶ 5 In the bedroom of the shooting, police located a .45 caliber casing, a spent bullet lodged in the wall, as well as a black satchel carrying case containing numerous female effects along with a pay stub in the name of Heather Markwardt. Police noted that Markwardt's vehicle was not present at the scene and issued a statewide alert to locate her black Chevrolet Blazer.

¶ 6 From these initial interviews with the Butler family members at the scene, the police learned that Norman Butler, Markwardt's boyfriend, had left the house after the shooting. The police located Norman walking a few blocks from the crime scene and transported him to the Sheboygan Police Department where he was interviewed. Norman told the police that James and Trisha were in Norman's bedroom while he and Markwardt were in the upstairs bathroom. He said both he and Markwardt heard a "bang" followed by what Norman termed a "click." Then, he said, he heard James saying, "It jammed, it fucking jammed." Norman said he did not hear any serious argument between Trisha and James before the shot. He said he entered the bedroom and saw James with "something black" in his hand and Trisha gasping for breath with her eyes partially open. Norman stated James was hysterical, screaming and asking, "Is she dead? Is she dead?"

¶ 7 At approximately 2:30 p.m., Detective Michael Bloedel, of the Jackson Police Department, received the message to look for a Chevy Blazer in connection with a Sheboygan county homicide; the names James D. Butler and Heather Markwardt were mentioned. Ten minutes later, Bloedel saw a Blazer matching the description he had been given and he began to follow it. Bloedel and other officers activated lights and sirens to make a stop. Almost immediately thereafter, the rear window of the Blazer shattered. The Blazer continued about 200 feet, then pulled over to the right side of Highway 60 and stopped. Markwardt exited the driver's side of the Blazer, screaming and hysterical. The police ordered her to the ground at gunpoint. James Butler was found inside the Blazer with a gunshot wound to the forehead and back of his head and a .45 caliber semi-automatic gun at his feet. He was later pronounced dead at an area hospital.

¶ 8 After being handcuffed, Markwardt was placed in the back seat of a squad car. While Markwardt was sitting in the squad, Bloedel asked how many shots James had fired. She said just the one shot to his head. Markwardt also made remarks indicating that she did not know what was going on or what had happened.

¶ 9 Markwardt was taken to the Jackson Police Department; still in handcuffs, she was initially placed in a holding room. At approximately 4:45 p.m., Lieutenant Leroy Shaw took Markwardt out of the holding room and removed her handcuffs. Shaw interviewed Markwardt for approximately twenty minutes and recapped the version of events Markwardt gave to him:

She had initially gone to her boyfriend's house, a Norman Butler. When she got there, the front door was standing open.... Her boyfriend's brother, James Butler, was upstairs talking to a female.... She couldn't tell who James was talking to because the female's voice was muffled.... [S]he started going upstairs towards the voices. James suddenly came running downstairs and stated that she had to take him somewhere. They had to leave right away. She followed ... got into a car. She was driving and James was a passenger in the car, and he just basically told her to drive. He ... was making various statements about, "Oh, my God, what have I done?" She was asking him what happened. He wasn't responding to that [and said] ... "Tell my family that I love them." And as she was trying to see the police, who are now activating the red lights, she heard a gunshot next to her. She pulled over and could see that James was shot, and she jumped out of the car and ran back towards the police.

¶ 10 Before the interview, Shaw let Markwardt use the restroom so she could clean up some of the blood that was on her. He also gave her a soda and took her outside so she could smoke a cigarette. Shaw informed Markwardt that she was neither under arrest nor suspected of committing any crimes in Jackson county. Shaw said he did not advise Markwardt of her Miranda rights because she was not in custody.

¶ 11 Detective Joel Clark of the Sheboygan Police Department arrived in Jackson to interview Markwardt about the events that took place at the Sibley Court residence in Sheboygan. The room in which Clark interviewed Markwardt was well-lit, measured about six feet by eight feet, and contained a table and chairs.

¶ 12 Clark introduced himself to Markwardt and told her he did not know whether the Jackson police considered her to be in custody. Markwardt told Clark that she was told that she was not in custody. Clark then read Markwardt her Miranda rights and gave her a copy of the rights so she could follow along. Markwardt signed a written waiver of her rights at 5:44 p.m. Before questioning Markwardt, Clark explained that he was not going to take into account what she had already told other officers and he emphasized the importance of telling the truth:

It's very important that you tell the whole truth, don't leave anything out. Because realize that there are lots of other people that have been talked to already. And, you know, if your story is different than them, we'll have to figure out why. And that just is not a good situation all the way around. So, and more important than that, this is just an extremely important thing and if there was a time to just lay the cards down and tell the truth, today is that time.

Thereafter, Markwardt gave Clark three separate accounts of what had happened.

¶ 13 In her first account, Markwardt stated that she had been at her mother's house in Sheboygan when Norman Butler phoned her and that she went to the Sibley Court residence about twenty minutes later. Upon entering the Sibley Court residence, she stated that there were people running up and down stairs and that James Butler approached her and asked her for a ride in a hysterical state and that she left the residence with James.

¶ 14 Approximately twenty-five minutes into questioning, Clark pointed out to Markwardt that her account did not match what Norman Butler had told other detectives.⁴ Markwardt then told Clark a second version of the events. This time she said she went to the Sibley Court residence with a backpack. She said she saw James and Trisha in Norman's bedroom when she knocked on the door in order to put her backpack in the bedroom. Markwardt said she was in the upstairs bathroom with Norman and could hear James asking Trisha, "Who did you fuck?" at least three times. She said ...