State v. Keith M. Abbott, 2020 WI App 25; case activity (including briefs)
After losing a suppression motion, Abbott pled “no contest” to 2nd degree intentional homicide. The court of appeals affirmed the denial of suppression for some evidence and reversed it as to other evidence. It held that Abbott’s mental breakdown during questioning did not relieve him of his duty make an unequivocal invocation of the right to counsel. And while it rejected the State’s request that it adopt a new harmless error test for cases where the defendant appeals the denial of suppression after pleading guilty, it nevertheless affirmed under the existing harmless error rule.
Abbott and his wife were estranged but still living in the same house. Early one morning, he returned home distraught and shaken. He told his wife he was having an affair and thought he might have killed his girlfriend. His wife called the police. Medical personnel arrived and removed Abbott’s 2 sweatshirts to examine him and left them on the floor.
Abbott was taken to the hospital where, at some point, staff handed an officer a “patient belonging bag” containing shoes and socks with blood belonging to his girlfriend. Due to Abbott’s mental state, an officer emergently detained him under §51.15. Meanwhile, another officer returned to Abbott’s house, asked for permission to take the 2 sweatshirts which later proved to contain the girlfriend’s blood too.
After police discovered the girlfriend’s body they interrogated Abbott, who waived his Miranda rights. He did not explicitly request counsel until the end, but he was visibly having a breakdown during the interrogation, exhibiting physical ticks and shaking and giving nonsensical answers.
4th Amendment: Abbott pled “no contest” and then appealed the denial of his suppression motion. The court of appeals affirmed the denial of his request to suppress the 2 bloody sweatshirts because Abbott’s wife had “common authority” over the couple’s property per United States v. Matlock, 415 U.S. 164, 171 (1974). It rejected Abbott’s contention that Matlock does not apply when spouses are estranged or when the property is a “personal effect.” The court said that Abbott cite no law to support these arguments. Opinion, ¶¶13-20.
The court of appeals reversed the circuit court’s decision to deny suppression of the “patient belongings bag” based on United States v. Jacobsen, 466 U.S. 109 (1984). Jacobsen holds that when a private party searches a suspect’s property, law enforcement may similarly search that property without offending the Fourth Amendment. The State argued it had authority to search the bag because hospital staff had already done so. The court of appeals held that inspection of the bag was not the issue. The question was whether law enforcement could seize the bag. Neither Jacobsen nor the State’s brief addressed seizure, so it reversed. Opinion, ¶21-27.
5th Amendment: Re Abbott’s claim for suppression of his confession, the interrogating officers repeatedly asked whether he would answer questions without an attorney. Apparently,”Abbott’s responses were generally ambiguous, and included statements such as “I don’t want to get in trouble with [my attorney],” “Ask [my attorney] if it’s okay,” and “[my attorney] said to have him here.” The officers did not cease uncounseled questioning.” Opinion, ¶33.
The court of appeals noted that Abbott did not contest the validity of his Miranda waiver. He acknowledged the requirement that a suspect make an unambiguous and unequivocal request for counsel during an interrogation under Berguis v. Thompkins, 560 U.S. 370, 384 (2010) and Davis v. United States, 512 U.S. 452, 462 (1994). He argued that this requirement should be relaxed because of his mental condition and because law enforcement knew he was recently hospitalized for mental health treatment. Given these circumstances, the comments he made sufficiently invoked his right to counsel. The court of appeals held there was no law to support the relaxed standard and so rejected the argument. Opinion, ¶¶35-36.
If Abbott’s mental breakdown had occurred during a hearing, the court would have been constitutionally required to stop and order a competency exam under Pate v. Robinson, 383 U.S. 375 (1966). But, it seems, when the breakdown occurs during an interrogation, cops benefit from a “relaxed standard.” The get to proceed full steam ahead regardless of the suspects condition.
Harmless error. Because the circuit court should have suppressed the “patient belonging bag,” ithe court of appeals had to address harmless error. The State, claiming an inconsistency in Wisconsin case law, asked the court of appeals to adopt a new harmless error test where the defendant successfully appeals the denial of suppression after a plea. According to the State, the court of appeals should affirm unless the defendant first proves “manifest injustice,” which is the standard for withdrawing a guilty plea after sentencing.
The court of appeals found no inconsistency in the law, and gave several policy reasons for rejecting the State’s proposal–one being judicial economy. Under the State’s proposed rule, defendants would no longer have an incentive to plead guilty. Opinion, ¶¶37-48. Then, applying existing law, it found the error in Abbott’s case harmless because the bloodstained shoes and socks in the “patient belongings bag” simply duplicated the bloodstained sweatshirts. Opinion, ¶¶49-51.
If you are looking for some creative challenges to the harmless error doctrine, try Daniel Epps, Harmless Error and Substantial Rights, Harv. L. Rev. June 2018.
I am curious as to why an involuntary confession was not looked at. There is caselaw supporting suppression when a person under serious mental illness is interrogated. See Norwood v. State, 74 Wis. 2d 343, 246 N.W.2d 801 (1976).