State v. Stevens

• Decision Date: 13 July 2012
• Docket Number: No. 2009AP2057–CR.,2009AP2057–CR.
• Citation: 2012 WI 97,822 N.W.2d 79,343 Wis.2d 157
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. David W. STEVENS, Defendant–Respondent–Petitioner.
• Court: Wisconsin Supreme Court

343 Wis.2d 157
822 N.W.2d 79
2012 WI 97

STATE of Wisconsin, Plaintiff–Appellant,
v.
David W. STEVENS, Defendant–Respondent–Petitioner.

No. 2009AP2057–CR.

Supreme Court of Wisconsin.

Argued Oct. 7, 2011.
Decided July 13, 2012.

[822 N.W.2d 81]

For the defendant-respondent-petitioner, there were briefs filed by Paul LaZotte, assistant state public defender, and oral argument by Paul LaZotte.

For the plaintiff-respondent, the cause was argued by Sally L. Wellman and the brief was filed by Mark A. Neuser, assistant attorneys general, with whom on the brief was J.B. Van Hollen.

ZIEGLER, J., concurs (Opinion filed).
ROGGENSACK and GABLEMAN, J.J., join concurrence.
ABRAHAMSON, C.J., concurs in part and dissents in part (Opinion filed).

DAVID T. PROSSER, J.

[343 Wis.2d 161]¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Stevens, No.2009AP2057–CR, unpublished slip op., 2010 WL 4630323 (Wis.Ct.App. Nov. 17, 2010). The Circuit Court for Waukesha County, Robert G. Mawdsley, Judge, suppressed an incriminating statement that David W. Stevens (Stevens) made to police during custodial interrogation. The court of appeals reversed, holding that even though Stevens invoked his right to counsel during questioning, he later initiated conversation with his police interrogator and thereafter knowingly, intelligently, and voluntarily waived his rights before making the incriminating statement. Id., ¶ 18.

¶ 2 The issues presented for review are (1) whether any of the constitutional protections recognized in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were violated under the unusual facts of this case, and (2) whether the court of appeals was correct in disregarding[343 Wis.2d 162]State v. Middleton, 135 Wis.2d 297, 399 N.W.2d 917 (Ct.App.1986)

[822 N.W.2d 82]

in its analysis, on grounds that Middleton was overruled by State v. Anson, 2005 WI 96, 282 Wis.2d 629, 698 N.W.2d 776.

¶ 3 The facts giving rise to this review may be summarized as follows: The suspect was arrested and taken into police custody. After receiving a Miranda warning and waiving his Miranda rights, the suspect began to answer questions. He then invoked his right to counsel and the questioning ceased. When the police interrogator escorted the suspect back to his holding cell, the suspect initiated a request to continue the interrogation “to clear [the] matter up.” He said he would be willing to waive his right to an attorney. Instead of resuming questions, the police interrogator left the police station on other business. During the interrogator's absence, the suspect did not ask for his attorney or request that someone contact an attorney for him. However, before the interrogator returned, the suspect's attorney on a prior charge arrived at the police station and asked to see the suspect. She was refused access by an officer who was unaware of any of the conversations between the suspect and the absent police interrogator, including the suspect's request for counsel. After the attorney left, the police interrogator returned to the police station to resume the questioning—after first administering a new Miranda warning to the suspect and receiving a waiver of the suspect's Miranda rights. In the ensuing interrogation, the suspect made an incriminating statement. He was not aware when he made the statement that his attorney on the prior charge had visited the police station and tried to see him.

¶ 4 We conclude that David Stevens withdrew his request for an attorney by voluntarily initiating a [343 Wis.2d 163]request to resume the questioning. He knowingly, intelligently, and voluntarily provided an incriminating statement to his interrogator after he was given a second Miranda warning. Although Stevens validly invoked his right to counsel, he cancelled his invocation of that right by initiating a dialogue in which he asked to continue the interrogation. This cancellation of the request for counsel was confirmed by the fact that Stevens made no effort to secure counsel while his interrogator was absent, by his recorded agreement that he initiated the conversation asking to resume questioning, and by his waiver of the right to counsel after receiving a second Miranda warning.

¶ 5 We also conclude that the decision in Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶ 13, 326 Wis.2d 729, 786 N.W.2d 78, did not require the court of appeals to disregard Middleton in its analysis because Anson overruled Middleton only to the extent that “it held a circuit court may take additional evidence at [a Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) ] hearing.” However, Middleton is factually distinguishable from this case and is now completely overruled on the merits.

¶ 6 Because we determine that Stevens' Fifth Amendment privilege against self-incrimination and his equivalent right under Article I, Section 8 of the Wisconsin Constitution were not violated, we affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND

¶ 7 The law in this case is highly fact-dependent. Consequently, we set out the facts with particularity.

¶ 8 On July 22, 2008, David Stevens, a 19–year–old convicted sex offender, was involved in an incident with an eight-year-old Waukesha girl in a swimming [343 Wis.2d 164]pool at an apartment complex in the city. The incident occurred shortly after 5:00 p.m.

[822 N.W.2d 83]

¶ 9 Around 7:00 p.m., two City of Waukesha officers were dispatched separately to the girl's home. They met with the girl, her parents, and her older sister. Officers Michael Carpenter and Cory Fossum were told that the girl had been swimming in the pool when she was approached in the water by a young man who appeared to be about 17. The girl described the man as “creepy.” She said the man asked to play with her. He grabbed her three or four times and ran his hands up and down the girl's sides. She did not assert that the young man had touched her private areas. The girl got out of the pool, crying, and told her older sister what had happened. The two wrote down the license plate of the man's car, which the older sister described as an orange vehicle with spray paint on it.

¶ 10 The two officers followed up their interview by going to the parking area of the apartment complex where they eventually located the car. As the officers looked for a vehicle identification number, Stevens came out of an apartment building and told them to get away from his car.

¶ 11 This exchange was the first interaction between police officers and Stevens concerning the incident. Stevens, who appeared to be wearing a swimming suit under his jeans, gave his name as David Stevens. Officer Carpenter asked him whether he had been at the pool. He admitted that he had. When asked about the girl, Stevens first denied any contact with a young girl, then told the officers that he saw a girl swimming in the deep end of the pool and grabbed her to pull her to safety because he was afraid she might not be able to swim. Challenged on this version of the facts, Stevens acknowledged rubbing his hands up and down the girl's [343 Wis.2d 165]sides and asking her to play. He eventually admitted having gratifying sexual thoughts about the girl but said he left the pool because he realized his behavior was wrong.

¶ 12 When Stevens gave his name, Officer Fossum went to his squad car to run an identity check on his computer. He later returned to the scene to ask Stevens about a pending felony charge of failing to update his residency information with the sex offender registry. Stevens acknowledged the charge and explained why he was required to register-he had committed the offense of fondling a 5–year–old girl when he was 14.

¶ 13 Shortly thereafter, Officer Carpenter arrested Stevens, placed him in his squad car, and transported him to the Waukesha police station where he was confined in a holding cell overnight. The arrest occurred sometime before 10:00 p.m. Stevens was not questioned in the squad car or at the police station.

¶ 14 Stevens did not have a fixed residence. He indicated that he had been kicked out of his mother's house, was homeless, and was temporarily staying with friends at the apartment complex.

¶ 15 The following day, July 23, at 10:30 a.m., Stevens was interviewed by Detective Rick Haines who had been assigned to the case by Lieutenant Detective William H. Graham, Jr. Detective Haines had been a police officer for more than 25 years and was working in the sensitive crimes unit of the Waukesha Police Department. The interview was electronically recorded. Stevens received and waived his Miranda rights before he began to answer questions. He agreed specifically to make a voluntary statement. Detective Haines warned Stevens that he would be asking him some “pointed questions about some things you[']ve been involved in.” [343 Wis.2d 166]In response to a question, Haines replied: “You [']re going to be charged with something, you know, but to what degree or as

[822 N.W.2d 84]

far as what specifically, that[']s to be determined, all right?”

¶ 16 Over the course of the interrogation, Stevens admitted having physical contact with the young girl. He admitted bumping into the girl intentionally once or twice, and wrapping his hands around her stomach.

¶ 17 Stevens then said, “I[']m starting to feel a little uncomfortable, like I want a lawyer here or something.” Detective Haines inquired further whether Stevens wanted a lawyer and Stevens replied: “I think I want to talk to my lawyer.” Detective Haines treated Stevens' statements as an invocation of the right to counsel and ceased the interrogation. The interrogation ended at 10:35 a.m., meaning that it had lasted about five minutes.

¶ 18 Detective Haines stepped out of the interview room briefly, then returned to escort Stevens back to the holding cell. During the short walk to the cell, Stevens indicated that he had changed his mind, that he wanted to clear the matter up...