Miranda – Waiver – Voluntariness – Police Deception – “Incommunicado” Detention, etc.

State v. Jennifer L. Ward, 2009 WI 60, affirming unpublished opinion
For Ward: T. Christopher Kelly

Issue/Holding: Taken individually and collectively, Ward’s 3 statements were voluntary, weighing personal characteristics against police conduct.

Personal characteristics, ¶23. Ward was: “relatively sophisticated and intelligent”; 35 years old; a high school graduate; prior conviction; the daughter of a police chief. Her “unprompted understanding of her rights” indicated lack of vulnerability to police questioning. Although she alleged back pain and seizures during questioning, the trial court found insufficient proof that her condition “made her particularly vulnerable.”

¶24      Therefore, Ward’s physical and mental condition did not cause her to become vulnerable to police interrogation. As a result, none of Ward’s personal characteristics favor concluding that her statements were made involuntarily.

Police conduct.

I. First statement, ¶¶26-28. Non-custodial, at hospital. An acknowledged “misrepresentation” by the police (relating to the accusatory content of a statement by Ward’s daughter) is relevant but by itself insufficient to establish voluntariness. Given that “the tone of the interview was conversational,” this statement was not involuntary.

II. Second statement, ¶¶29-45. Custodial, at police station.

1. Failure to inform Ward that attorney was trying to see her, ¶¶34-37. Failure to inform Ward that an attorney was waiting outside the interrogation room to talk to her was not, under Moran v. Burbine, 475 U.S. 412 (1986), as adopted by State v. Hanson, 136 Wis. 2d 195, 213, 401 N.W.2d 771 (1987), relevant to voluntariness of Miranda waiver.
2. Failure to respond to Ward’s inquiry about husband, ¶¶38-42. Suspect’s request to speak with family member triggers no constitutional rights, therefore doesn’t affect validity of waiver of rights. State v. Jerrell C.J., 2005 WI 105 distinguished and (apparently) limited to interrogation of juveniles.
3. Equivocal request for counsel, ¶¶43-45. Ward’s asking the interrogators what they thought she should do amounted to an equivocal request for counsel and as such didn’t require cessation of the interrogation.

¶44      However, in response to Ward’s question, Schaepe did provide Ward with further information about her right to counsel, even though he was not required to do so. Schaepe stated, “Well see that’s a decision that you make. I can’t make those decisions for you.” This is a completely accurate statement of Ward’s rights. As we stated in Hanson, “no one but the accused can make the decision to make a statement to the police or to ask for the assistance of counsel in making his decision.”Hanson, 136 Wis.  2d at 213. It was up to Ward, not Schaepe or Wood, to decide whether to call an attorney. Since Ward’s statements were equivocal, Schaepe and Wood had no obligation to cease questioning or to ask Ward to clarify her statements. Accordingly, this conduct did not affect the validity of Ward’s waiver of rights at the second interview.

Under the 5^th amendment, which is to say pre-charge, only an unequivocal request for counsel requires that interrogators pack up and leave. But in a post-charge setting (therefore under the 6^th A), an equivocal request does the trick, something the majority itself recognizes, ¶43 n. 5. The dissent expresses great disquietude at the idea such differential regard of right to counsel is subject to “manipulation” of the timing of the charge, and the dissent advocates incorporating the 6^th-A test into the 5^th’s under the state constitution, ¶¶90-99. This round of an on-going New Federalism bout goes to the opposition, 4-3. More interesting and perhaps of greater consequence is the treatment given Montejo v. Louisiana, 556 U.S. ___ (2009). Non-treatment might be more apt, and that’s a good thing. That case, you’ll recall, overruled prior precedent that in the post-charge 6^th A setting you don’t have to assert your right to counsel; after Montejo you do. Well, then, does this mean that, once made, a 6^th-A assertion will now be given the same stinting analysis as the 5^th? The dissent says Montejo simply doesn’t apply to the case at hand, ¶90 n. 8. Fine, but the majority actually goes farther and reaffirms the differential test Montejo notwithstanding, ¶43 n. 5 (“We note that, after a defendant has been formally charged, the Sixth Amendment right to counsel applies, and in contrast to the Fifth Amendment right to counsel, an equivocal request for counsel in a Sixth Amendment context is sufficient to invoke that right.”). The footnote goes on to favorably cite State v. James H. Hornung, 229 Wis.2d 469, 600 N.W.2d 264 Ct. App. 1999). If, then, in some future case the State argues that Montejo not only requires an assertion but an unequivocal one, then Ward would refute the point; it remains true that in the 6^th A context an equivocal request is enough to invoke the right to counsel, per Hornung.

III. Third statement, ¶¶26-59. Custodial, at police station, after night in jail.

The 2^nd interrogation ended at 5:20 p.m. and Ward was taken to jail. A detective informed her that she would not be allowed to call anyone till next day, but at 7:00 p.m. he instructed the jailer to inform her that she could call a lawyer if she wanted. The trial court found as a matter of fact that that “night” she “was reminded that she call an attorney.”

¶52      Based on these principles and the circuit court’s findings, we conclude that Ward is correct in asserting that she was held in a constitutionally impermissible status during the hour and 40 minutes that she could not contact a lawyer, if she had asked to do so. However, preventing others from contacting Ward cannot have affected her waiver of rights or the voluntariness of her statements, because she was not aware that anyone was trying to contact her. Id. at 422. Furthermore, as soon as Ward was informed by the jailer that she could contact a lawyer, her constitutionally impaired status ceased and she was once again free to speak with a lawyer if she requested to do so. Id. at 433 n.4. And finally, this is not a case where Ward was held by the police for an extended period of time. She agreed to accompany the police to the station in the afternoon of the day that her nephew died; she was kept overnight; and she was charged the next day.

¶53      However, even though Ward was allowed to call a lawyer, she made no attempt to do so at any time. Even assuming that Ward would have attempted to contact an attorney between 5:20 p.m. and 7:00 p.m. on December 1, the remedy for her brief deprivation of the right to contact a lawyer would be suppression of any incriminating statements that she made during that time. …

The majority stresses, ¶59: “Furthermore, any effect that Ward’s brief deprivation of the right to counsel the previous night may have had on the voluntariness of her subsequent statements is negated by her initiating the interview, her obvious willingness to talk and her clear waiver of rights.” Nor does it matter that she was inhibited from seeking advice from her husband as to whether she should seek representation, ¶58 (“Again, we emphasize that the decision whether to invoke the right to counsel is personal to the suspect, and cannot be made by anyone else. Hanson, 136 Wis. 2d at 213. The officers had no constitutional obligation to permit Ward to speak to her husband.”). Although the dissent certainly expresses a doctrinal difference of opinion, its discussion also shows that ultimately the majority’s conclusion is highly fact-bound. Thus, under the dissent’s construction of the record, the majority “understates by at least 23 hours the amount of time Ward was held incommunicado, ^[9] a key factor in the totality of the circumstances,” ¶72.

“Totality” analysis, ¶¶60-67. Short version: Zero plus zero plus zero = equals zero.

Miranda is adhered to, a “colorable” claim of an involuntary statement will be “rare,” ¶61. And, “Police coercion is a necessary predicate to a finding that a confession is not voluntary,” ¶64. Here, there are but two instances of coercion: a deceptive recitation of Ward’s daughter’s statement, and a “brief deprivation of the right to counsel,” ¶64, and though relevant don’t establish coercion.