State v. Walkowiak

• Decision Date: 13 May 1994
• Docket Number: No. 92-1558-CR,92-1558-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Bonnie J. WALKOWIAK, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 863

515 N.W.2d 863

183 Wis.2d 478

STATE of Wisconsin, Plaintiff-Appellant, v. Bonnie J. WALKOWIAK, Defendant-Respondent-Petitioner.

No. 92-1558-CR.

Supreme Court of Wisconsin.

Argued Oct. 12, 1993.

Decided May 13, 1994.

For the plaintiff-appellant the cause was argued by Daniel J. O'Brien, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

BABLITCH, Justice.

Bonnie J. Walkowiak (Walkowiak) seeks review of a court of appeals' decision which refused to suppress her confession, 173 Wis.2d 908, 499 N.W.2d 301. The narrow issue presented is whether the inquiry made by Walkowiak to the police, "Do you think I need an attorney?" is sufficient to invoke her right to counsel. The inquiry was made after she had been told of her Miranda ¹ rights and signed the standardized form acknowledging them ², but prior to her confessing. Walkowiak argues that her inquiry was an invocation of her right to counsel and any admissions obtained after that inquiry were obtained in violation of her rights and should be suppressed. We disagree. We conclude that her inquiry, based on this record, is equivocal and therefore insufficient to invoke the right to counsel. The mere mention of an attorney does not trigger the right to counsel. However, upon an equivocal inquiry all interrogation must cease until the ambiguity is resolved. Although the record before us also indicates that the interrogating officer's responses were appropriate under the circumstances, the record is incomplete. Walkowiak presented no evidence at the suppression hearing inasmuch as the circuit court suppressed the confession based solely on the officer's testimony. We therefore affirm the court of appeals' unpublished decision refusing to suppress the confession and remand for further proceedings.

The facts developed in the record are as follows: Two Brown County sheriff's deputies, Sergeant Brosig (Brosig) and Lieutenant Baudhuin (Baudhuin), followed a woman, later identified as Bonnie J. Walkowiak, into the Green Bay Correctional Institution on a tip that she was bringing drugs into the prison in balloons on her person.

Once inside the prison, the prison guard informed Brosig and Baudhuin that Walkowiak was in the bathroom. The guard then unlocked the door to the bathroom, the officers entered, observed Walkowiak pulling up her jeans, and arrested her. Brosig then noticed cash scattered on the floor and several colored balloons in the garbage can. Some of the balloons contained what Brosig believed was marijuana, and one balloon contained two white pills.

Walkowiak was transported to the Brown County sheriff's department and upon arrival, Brosig gave her a copy of a standardized rights form which lists the Miranda rights. Brosig read this form to Walkowiak, and she signed it.

It is difficult to determine from the record the exact chain of events at this point in the questioning. The record only contains Brosig's testimony at the preliminary examination and the motion hearing and is void of any testimony by Walkowiak. Although Brosig could not remember the exact words exchanged during questioning, he testified that sometime after Walkowiak signed the Miranda form she told Brosig that she had an attorney from another case and asked Brosig whether she needed an attorney. The circuit court made a finding that Walkowiak stated, "Do you think I need an attorney?" Brosig responded that he could not answer that question, and that she would have to decide for herself whether or not to get an attorney. In addition, Walkowiak expressed concern about her children, and Brosig responded that he was not able to tell her what would happen to her children since they were under the jurisdiction of a different county.

Sometime after this conversation, Brosig told Walkowiak that he could not talk to her about the incident at the prison until she signed the waiver portion of the rights form. Walkowiak signed the waiver portion of the form which stated that she read and understood her rights, that she was willing to answer questions and that she did not want an attorney at that time. She then proceeded to make inculpatory statements to Brosig. Brosig prepared a written summary of Walkowiak's statements, read it to her, and asked her to sign it. Walkowiak signed the statement.

On December 24, 1992, a criminal complaint was filed in Brown County charging Walkowiak with possession of a controlled substance with intent to deliver it to a prisoner. Walkowiak entered a not guilty plea and moved the circuit court to suppress any and all statements made at the Brown County sheriff's department claiming that she had invoked her right to counsel prior to the statements, and thus the statements were taken in violation of her Miranda rights. At the motion hearing, Brosig testified about the interview he conducted with Walkowiak. Upon conclusion of Brosig's testimony, Walkowiak moved to suppress based solely on Brosig's testimony and preserved her right to testify if the court did not order suppression.

The circuit court concluded that Walkowiak's inquiry, "Do you think I need an attorney?" was an invocation of her right to counsel under State v. Lampe, 119 Wis.2d 206 349 N.W.2d 677 (1984), and that questioning should have ceased immediately. Accordingly, the circuit court determined that any statements made after the invocation were obtained in violation of Walkowiak's Miranda rights and ordered that they be suppressed.

The court of appeals reversed. It concluded that the circuit court misconstrued the law under Lampe, that the statement by Walkowiak was equivocal, and that the issue whether the statement was sufficient to invoke Walkowiak's right to counsel required further fact-finding. It remanded for further evidentiary hearings. Walkowiak petitioned for review which we granted.

The question of law we decide today is very narrow. We must determine whether the inquiry, "Do you think I need an attorney?" is sufficient to invoke Walkowiak's right to counsel. We do not address whether Walkowiak's subsequent waiver of rights was voluntary, knowing, and intelligent since that question has not been decided by the circuit court.

We begin then with the fundamental precept that once an accused in custody "states that he wants an attorney, the interrogation must cease until an attorney is present," Miranda, 384 U.S. at 474, 86 S.Ct. at 1628, unless the accused validly waives his request. Id. at 444, 86 S.Ct. at 1612. This rule embodies two inquiries: whether the accused invoked his right to counsel, and if so, whether he initiated further discussion with the police and knowingly and intelligently waived his right. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488 (1984).

Our focus in this case is solely on the first inquiry. We must determine whether Walkowiak invoked her right to counsel when she asked Brosig, "Do you think I need an attorney?" In Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612, the Supreme Court adopted a rigid, prophylactic standard: "If ... [an accused] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning."

The State contends that the Supreme Court narrowed this standard fifteen years later in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), when it characterized the invocation of the right to counsel as "having expressed [the] desire to deal with the police only through counsel ..." Id. at 484, 101 S.Ct. at 1885, and "clearly assert[ing] [the] right to counsel." Id. at 485, 101 S.Ct. at 1885.

Edwards, however, did not resolve the issue of whether equivocal requests are sufficient to invoke the right to counsel. In Edwards, the accused had clearly asserted his right to counsel; the only issue remaining was whether all questioning must cease upon such a clear invocation. Accordingly, the Court fashioned a bright-line rule requiring all interrogation to cease when an accused clearly asserts his or her right to counsel.

The Supreme Court has not resolved the issue of whether equivocal requests by an accused are sufficient to invoke the accused's right to counsel. This is evinced by the Court's decision in Smith, 469 U.S. at 95, 105 S.Ct. at 492-93, where in deciding whether an accused invoked his right to counsel, the Court cited both the "clearly asserted" standard in Edwards and the "indicates in any manner" standard in Miranda.

We note, however, that the Court in Smith recognized that some statements made by an accused in custody may be equivocal. Although the Court did not define equivocal in this context, it stated that in attempting to define equivocal, the only relevant considerations are the circumstances leading up to the request and the context of the actual request. Id. at 98, 105 S.Ct. at 494.

Further, although the Court did not rule on the consequences of an equivocal statement, it recognized the three conflicting approaches to this question adopted by those courts that have considered the issue. Id. at 96, 105 S.Ct. at 490.

The first approach is that used by the circuit court in this case: any request for or reference to an attorney, however equivocal or ambiguous, acts as an invocation of the right to counsel and requires all questioning to cease immediately. See also Maglio v. Jago, 580 F.2d 202 (6th Cir.1978). Other courts have adopted a second approach in which they have attempted to define a threshold standard of clarity for requests. Any requests that fall below this threshold do not trigger the right to counsel. See, e.g., People v. Krueger, 82 Ill.2d 305, 45 Ill.Dec. 186, 189, 412 N.E.2d 537, 540 (1980),cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 390 (1981).

The majority of courts that have addressed this issue, however, have adopted a third approach: all questioning need not cease upon mention of the words "attorney" or "lawyer." These courts hold that when...