Johnnie Mertice Wesley v. Randall Hepp, No. 22-2968, 1/5/24
Wesley’s challenges to law enforcement conduct which resulted in him giving inculpatory statements fail, as the Seventh Circuit concludes that the Wisconsin Court of Appeals reasonably applied SCOTUS precedent.
(See our post on the previous state court litigation here).
Wesley was brought in for questioning related to a murder investigation. (p.1). In his first interview, he told police he did not want to talk about “no murder”; police then halted the interview. (p.2). Nine hours later, police tried again. (p.3). Wesley still did not want to speak. (Id.). Undeterred, police then tried once more; during that interview Wesley made a number of statements he contends were invocations of his right to remain silent. (pp.3-5). Police did not yield and, ultimately, Wesley confessed. (Id.).
Wesley moved to suppress his statements. (p.6). He made two arguments: First, that his initial invocation of silence was not scrupulously honored and, second, that he unequivocally invoked his right to remain silent during the third interrogation. (Id.). The Wisconsin Court of Appeals affirmed the circuit court’s denial of Wesley’s motion, leading ultimately to this habeas appeal.
As to Wesley’s first claim, he must prove that the Wisconsin COA unreasonably applied Michigan v. Mosley, which conditions the admissibility of post-invocation statements on whether law enforcement has “scrupulously honored” the person’s initial invocation of the right to remain silent. As the Seventh Circuit observes, Mosley merely held that this must be determined based on an analysis of the “totality of the circumstances” and lower courts (like Wisconsin) are free to apply their own multi-factor test in making that determination. (p.8). The Court therefore specifically holds that Wisconsin’s multi-factor test outlined in State v. Hartwig is “consistent” and compatible with Mosley’s requirements. (p.9). Examining the totality of the circumstances, the Seventh Circuit is satisfied that the Wisconsin COA reasonably “determined that the officers did not seek to undermine Wesley’s right to remain silent.” (p.11).
Mosley’s next legal challenge focuses on his statements during the third interview, which he contends should have been construed as an invocation of the right to remain silent. Under Berghuis v. Thompkins, Wesley must prove that these statements were an “unambiguous” invocation of the right. (Id.). He identifies several statements that certainly seem to be sending a clear message:
- “Ain’t nothing to talk about doe.”
- I ain’t got shit to say about no homicide.”
- “Can I go back to my cell now?”
(p.12).
Unpacking these statements in context, however, the Court disagrees that the Wisconsin courts got it wrong and holds that the statements were reasonably construed as ambiguous. (pp. 13-14). While Wesley identifies at least two defense-friendly Seventh Circuit cases which would assist his arguments with respect to the first two statements, AEDPA means that these authorities are irrelevant to determining whether Wisconsin courts violated clearly established federal law, as that criterion focuses on precedents of the United States Supreme Court. (p.13). Accordingly, the Seventh Circuit affirms the district court’s denial of the petition for a writ of habeas corpus.
This is a frustrating loss that once again demonstrates just how unforgiving AEDPA can be. However, we encourage state court litigators to continue to confront and preserve such “unequivocal invocation” claims. As this case shows, there is favorable persuasive precedent in the Seventh Circuit which can assist state court litigators, as well as a notable dissent by Justice Abrahamson bemoaning Wisconsin’s problematic interpretation of the “ambiguous invocation” test. In 2019 SCOW was lined up to revisit these issues in State v. Green; however, the appeal was then voluntarily dismissed. Perhaps a case with more favorable facts might yet result in a course correction for Wisconsin’s appellate courts with respect to this issue.
