State v. Ross

• Decision Date: 18 June 1996
• Docket Number: No. 95-1671-CR,95-1671-CR
• Citation: 552 N.W.2d 428,203 Wis.2d 66
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lawrence H. ROSS, Defendant-Appellant.

Page 428

552 N.W.2d 428

203 Wis.2d 66

STATE of Wisconsin, Plaintiff-Respondent, v. Lawrence H. ROSS, Defendant-Appellant.

No. 95-1671-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 6, 1996.

Opinion Released June 18, 1996.

Opinion Filed June 18, 1996.

For the defendant-appellant the cause was submitted on the briefs of Manuel R. Galang of Wauwatosa.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General, and William C. Wolford, Assistant Attorney General.

Before SULLIVAN, FINE and SCHUDSON, JJ.

SULLIVAN, Judge.

A jury convicted Lawrence H. Ross of two counts of first-degree sexual assault of a child. He appeals from the judgment of conviction, arguing that his statements to police should have been suppressed because his five to twenty seconds of silence after he received the Miranda warnings invoked his right to remain silent. ¹ He also challenges the trial court's admission into evidence of a treating nurse's testimony that the victim's physical condition at the time of her treatment was consistent with the victim's statement to her that her vagina had been penetrated.

We hold that the United States Supreme Court decision in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), which held that a criminal suspect must unambiguously request counsel before the police must cease questioning, also applies to a suspect's invocation of the right to remain silent. We therefore further conclude that Ross's five to twenty seconds of silence after receiving the Miranda warnings did not constitute an unambiguous and unequivocal invocation of the right to remain silent. Accordingly, the trial court properly refused to suppress Ross's statements to police.

Additionally, we conclude that the trial court properly exercised its discretion when it admitted the nurse's testimony into evidence. Under Wisconsin law, it is clear that the nurse could properly testify that the victim's physical condition at the time of treatment was consistent with the victim's statement to her that her vagina had been penetrated. Because we reject Ross's arguments, the judgment of conviction is affirmed.

I. BACKGROUND.

Police arrested Ross for having repeated sexual contact with his six-year-old niece from January to April, 1994. Police took Ross into custody, and later Detective Herman G. Kremkau questioned Ross at the Police Administration Building. Ross later challenged the admissibility of his statements to police, arguing that he had never been advised of his Miranda rights, and that he did not knowingly, intelligently, and voluntarily waive those rights.

According to Detective Kremkau's testimony during a pre-trial motion hearing, he first questioned Ross at the Police Administration Building about his identity and background. Detective Kremkau testified that he then advised Ross of the Miranda rights, telling him, inter alia, that he had "the constitutional right to remain silent," which Ross stated he understood. Detective Kremkau then advised Ross about the charges against him, based on the accusations of his niece and her mother, and, according to Detective Kremkau's testimony, the following occurred:

I asked him if he had anything to say, and he just sat there looking at me.

I advised him, I said, do you understand what I'm telling you? Do you have a reason as to why they would make these statements, if they are false, and he stated no, and I requested again if he would like to make a statement, and he just sat there looking at me.

Finally, I says [sic], am I to understand that by you remaining silent that [the victim] is lying? Is this all made up? He stated no. I said is she telling the truth? He said yes.

....

At that point he stated that he wanted to think about it for a while and there was no other statements made.

Detective Kremkau testified at the hearing that Ross's periods of silence lasted "no more than five to ten seconds." At Ross's trial, Detective Kremkau testified that the silence may have lasted fifteen to twenty seconds. Ross did not testify at the suppression hearing. The trial court did not make specific factual findings, but stated that "[f]rom the testimony and the evidence presented ... [Ross] was properly advised of his Miranda rights ... and thereafter ... made what comments he chose to make.... [W]hatever he said ... appears to have been done ... freely and voluntarily." The trial court then denied the suppression motion.

Also before trial, Ross brought a motion in limine to exclude the testimony of a State witness, treating nurse Susan Talaska-Pikalek, because she allegedly would be testifying that the victim had been sexually assaulted. The trial court ruled that the State could ask Talaska-Pikalek "whether the observed condition of the victim was consistent with" the victim's statement at the time of her treatment.

At trial, during the State's direct examination of Talaska-Pikalek, she testified that the victim told her that Ross had touched and penetrated her genital area with his hand and penis. She then testified about her physical examination of the victim:

Q. What did you observe with respect to the hymen or to what you saw as to no hymen based upon your work in that unit and based upon your training? Would you find that consistent or inconsistent with what [the victim] had told you?

A. With--Consistent as to what you told me?

Q. Penetration to the vagina.

A. Consistent.

The jury convicted Ross of both counts of sexual assault of a child.

II. ANALYSIS.

A. Right to Remain Silent.

Ross argues that his statement to the police should have been suppressed because the State violated his privilege against self-incrimination when Detective Kremkau continued to question him after he allegedly invoked his right to remain silent by remaining silent. Ross is wrong.

"In Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694, (1966), the Supreme Court fashioned a set of procedural guidelines designed to protect a suspect's rights under the Fifth Amendment from the 'inherently compelling pressures' of custodial interrogation." State v. Harris, 199 Wis.2d 227, 237-38, 544 N.W.2d 545, 549 (1996). Both the suspect's right to counsel and the right to remain silent are separately protected by these procedural guidelines. Miranda, 384 U.S. at 467-73, 86 S.Ct. at 1624-27, 16 L.Ed.2d at 719-23.

A suspect's right to remain silent includes two distinct protections. The first is the right, prior to questioning, " 'to remain silent unless [the suspect] chooses to speak in the unfettered exercise of his own will.' " Id. at 460, 86 S.Ct. at 1620, 16 L.Ed.2d at 715 (citation omitted). The second is the " 'right to cut off questioning.' " Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975) (citation omitted). "Through the exercise of [a suspect's] option to terminate questioning he [or she] can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation." Id. at 103-04, 96 S.Ct. at 326, 46 L.Ed.2d at 321. Hence, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his [or her] 'right to cut off questioning' was 'scrupulously honored.' " Id. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321 (citation omitted).

The key question thus becomes whether the suspect, after being informed of the Miranda rights, invokes any of those rights during police questioning. Once the right to remain silent or right to counsel is invoked, all police questioning must cease--unless the suspect later validly waives that right and "initiates further communication" with the police. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627, 16 L.Ed.2d at 723; Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378, 386 (1981).

In Davis, the Supreme Court declared that in order for a suspect to invoke the right to counsel, "the suspect must unambiguously request counsel." Davis, 512 U.S. at ----, 114 S.Ct. at 2355, 129 L.Ed.2d at 371. Hence, "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Id.

Wisconsin courts have merged the Davis "clear articulation rule" into Wisconsin jurisprudence with respect to a suspect's invocation of the right to counsel. See State v. Coerper, 199 Wis.2d 216, 223, 544 N.W.2d 423, 426 (1996). ² Yet no court in this state has spoken on whether the rule also applies to a suspect's invocation of the right to remain silent. Thus, we are presented with an issue of first impression. ³

Following the nearly unanimous lead of other jurisdictions that have addressed this issue, we hold that the Davis "clear articulation rule" also applies to a suspect's invocation of the right to remain silent. ⁴ We adopt this rule, acknowledging that "[t]he Supreme Court's concern in Davis was to craft 'a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information.' " Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir.1994) (quoting Davis, 512 U.S. at ----, 114 S.Ct. at 2352, 129 L.Ed.2d at 372), cert. denied, 514 U.S. 1086, 115 S.Ct. 1801, 131 L.Ed.2d 727 (1995). This concern is equally cogent with respect to a suspect's invocation of the right to remain silent.

As other courts have noted, however, there is a practical difference between invoking the right to counsel and invoking the right to silence. Unambiguously invoking the right to counsel can generally only be accomplished through a suspect's oral or written declaration. "It is difficult to imagine what behavior a defendant could use to clearly convey the desire to speak with...