Joint Appendix — McNeil v. Wisconsin
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
PAUL MCNEIL,
Petitioner,
V.
WISCONSIN,
Respondent.
On Writ of Certiorari to the
Supreme Court of Wisconsin
JOINT APPENDIX
Gary M. Luck * DAVID BECKER *
(Appointed by this Court) Assistant Attorney General
839 North Jefferson Street Office of Attorney General
Suite 501/P.0. Box 93726 P.O. Box 7857
Milwaukee, Wisconsin 53202 Madison, Wisconsin 53707-7857
(414) 347-0340 (608) 266-1221
Counsel for Petitioner Counsel for Respondent
* Counsel of Record
—
PETITION FOR CERTIORARI FILED JULY 30, 1990
CERTIORARI GRANTED OCTOBER 29, 1990
INDEX
Chronological List of Docket Entries
Request warrant from Town of Caledonia Police De-
partment dated May 18
Copy of Milwaukee County Sheriff’s Department State-
ment Of Your Rights dated May 20, 1987
Portion of Judgment Role from State v. McNeil, L-8411
May 22, 1987
Appearance of Petitioner with Counsel before Judicial
Court Commissioner Liska on May 22, 1987
Copy of Milwaukee County Sheriff’s Department State-
ment Of Your Rights dated May 22, 1987
Decision of Trial Court dated February 28, 1989
Certification from Court of Appeals of Wisconsin, Dis-
trict II dated November 1, 1989
Decision and Judgment of the Wisconsin Supreme Court
decided May 2, 1990
Order of the Supreme Court of the United States grant-
ing certiorari and leave to proceed in forma pauperis,
October 29, 1990
CHRONOLOGY OF RELEVANT EVENTS
DATE
May 18, 1987
May 20, 1987
May 22, 1987
May 22, 1987
May 24, 1987
May 26, 1987
May 27, 1987
PROCEEDINGS ~
AND DOCKET ENTRIES
Town of Caledonia Police Department
prepares a request for a warrant to
charge the Petitioner with various of-
fenses including party to a crime first
degree murder
Petitioner is taken into custody by Mil-
waukee County Deputy Sheriffs to be re-
turned to Milwaukee, Wisconsin for
charges of armed and masked robbery
Petitioner appears before a Milwaukee
County Judicial Court Commissioner for
an initial appearance with an appointed
attorney on the charges of armed and
masked robbery; bail is set and the mat-
ters are scheduled for a preliminary
hearing
After his initial appearance in court,
while in custody, Petitioner is questioned
regarding the Town of Caledonia mur-
der and a statement is obtained
While in custody, Petitioner is questioned
regarding the Town of Caledonia mur-
der and a statement is obtained
While in custody, Petitioner is questioned
regarding the Town of Caledonia murder
and a statement is obtained
The Town of Caledonia request for war-
rant dated May 18, 1987, is received by
the Racine County District Attorney and
a complaint and warrant charging Peti-
tioner with party to a crime first degree
murder and other offenses is issued
1
‘DATE
2
PROCEEDINGS
June 4, 1987
July 9, 1987
December 14, 1987
January 19, 1988
March 18, 1988
February 15, 1989
February 28, 1989
March 16, 1989
May 2, 1990
Petitioner makes his first appearance in
Racine County, Wisconsin, on criminal
charges including party to a crime first
degree murder; bond is set and a prelimi-
nary hearing is scheduled
Motions are filed including motions to
suppress Petitioner’s statements
Petitioner’s motion to suppress state-
ments is denied
Petitioner enters plea of guilty to
amended charge of second-degree mur-
der, attempted first degree murder, and
armed burglary, all as party to a crime
Petitioner sentenced to imprisonment for
a total of 60 years
Hearing on Petitioner’s motion to with-
draw guilty plea
Written decision denying motion to with-
draw guilty plea is filed by the trial court
Notice of Appeal filed
Supreme Court of the State of Wisconsin
affirms the ruling of the trial court
3
REQUEST WARRANT
“ Date Submitted 5-18-87
Police Agency CA
DOB 03-05-61
Sex/Race M/Black
Ht/Wt 506/140
Eyes/Hair Bro/Blk
Comp No 2485-8
Arrest No 289B to
Time Request Warrant
Defendant McNEIL PAUL MATTHEW
Address 1833 N. 25th St. Milwaukee, WI.
Date of Offense March 9, 1987
Place of Offense 12105 Adams Rd. Town of Caledonia
Arresting Officer(s) Sgt. R. Stauss
Offense
PTAC FIRST DEGREE MURDER
PTAC Att. FIRST DEGREE MURDER
PTAC BURGLARY
PTAC Strong Arm Robbery
Section
940.01(1)
940.01(1)
943.10 (2d)
943.32(1)
Victim
Restitution Amount $ See report.
Owed to See report.
4
Pertinent Information Suspect is currently being held
by the Omaha Nebraska Police Department on warrants
issued in Wisconsin for being a party to armed robbery.
Milwaukee Co. Sheriff’s Department is handling the war-
rants and suspect may waive extradition. .... ;
/s/ Sgt. [Illegible]
ACTION TAKEN BY DISTRICT ATTORNEY
Received on 5-27-87 By CMR Assigned to Date
{) Complaint Only Offense as requested
() Complaint & Summons .
Complaint & Warrant Section
() Criminal Complaint will not be issued because
Prosecutor /s/ Gerald P. Ptacek Date 5/27/87
5
MILWAUKEE COUNTY SHERIFF’S DEPARTMENT
STATEMENT OF YOUR RIGHTS
Place Douglas Co. Jail
Date May 20th, 1987
Time 2:00 PM
Before we ask you any questions, it is my duty to advise
you of your rights.
You have a right to remain silent.
Anything you say can and will be used against you ina
court of law.
You have the right to consult with a lawyer before ques-
tioning and to have a lawyer present with you during
questioning.
If you cannot afford to hire a lawyer, one will be ap-
pointed to represent you at public expense before or dur-
ing any questioning if you so wish.
If you decide to answer questions now without a lawyer
present, you have the right to stop the questioning and
remain silent at any time you wish, and the right to ask
for and have a lawyer at any time you wish, including
during the questioning.
WAIVER—
Do you understand each of these rights? Yes
Realizing that you have these rights do you wish to an-
swer questions or make a statement now? No.
6
WAIVER OF RIGHTS
I have read this statement of my rights and I fully un-
derstand what my rights are. I am willing to make a
statement and answer questions. I do not want a lawyer
at this time. I understand and know what I am doing.
No promises or threats have been made to me and no
pressure or coercion of any kind has been used against
me.
Signed /s/ Paul McNeil
Witness: /s/ Eugene Welch
Witness: /s/ [Illegible]
Time: 2:05 PM
7
STATE OF WISCONSIN
CIRCUIT COURT
MILWAUKEE COUNTY
Case No. L-8411
STATE OF WISCONSIN,
Plaintiff,
vs.
PAUL M. MCNEIL,
Defendant.
JUDGMENT ROLE
May 22, 1987
Frank J. Liska, Jr.
Judicial Court Commissioner
Sharon Best
Court Reporter
Deft. in court (Paul M. MeNeil) with Atty. Joseph
Caton, Assistant D.A. Warren Zier.
Defendant given a copy of complaint and advised of
contents. Defendant advised of maximum sentence and
right to counsel. Court reviewed complaint and finds
probable cause to hold defendant for further proceedings.
Statement by Public Defender J. Caton/Defendant
indigent and Public Defender will provide counsel.
Case adjourned for Preliminary Hearing to 5-28-87,
1:30 p.m. in Branch 30.
Bail: $25,000 cash.
8
STATE OF WISCONSIN
CIRCUIT COURT
MILWAUKEE COUNTY
Case No. L-8411
STATE OF WISCONSIN,
Plaintiff,
Vs.
PAUL M. MCNEIL,
Defendant.
May 22, 1987 Before
Frank J. Liska, Jr.
Judicial Court
Commissioner
CHARGE: ROBBERY, ARMED AND MASKED
PARTY TO A CRIME (3 Counts)
[2] PROCEEDINGS
THE BAILIFF: This is Case No. L-8411, State of
Wisconsin vs. Paul M. McNeil, Armed and Masked Rob-
bery, Party to a Crime, three counts.
These are all Class B felonies. The maximum possible
penalty is imprisonment for not more than 20 years as
to each count. Do you understand the possible penalties,
Mr. MeNeil? “
THE DEFENDANT: Yes, I do.
MR. ZIER: Actually, that’s 25 years each count and
a $10,000 fine or both. Because they’re charged as
masked and concealed.
9
MR. CATON: Mr. MeNeil appears subject to reserva-
tion of jurisdictional objections, Joseph Caton with him.
We have the complaint and waive its reading. I have
read it to him.
Should you find it states probable cause, he will request
a preliminary examination.
THE COURT: [I'll make a finding of probable cause.
We went through this drill once before, didn’t we?
MR. CATON: Yes.
MR. ZIER: No, this is a three-defendant case.
MR. CATON: Mr. Dixon has gone through prior.
[3] THE COURT: Oh, okay, that’s right. Yes, the
reason they got him first is because his license plate
said H. Dixon.
Having found probable cause, what bail is being
requested?
MR. ZIER: $25,000 cash. There isn’t an in-depth
explanation of the reason for that, but it appears, at
least from the complaint and the reports involved, that
Mr. McNeil was really one of the principals involved
here. Additionally, as the Court file may indicate, he
was extradited from Nebraska. Actually, he wasn’t ex-
tradited. He waived extradition from Nebraska.
I think in light of the offenses, of the exposure that
he’s facing, his obvious ability for interstate travel, I
think that significant cash bail is appropriate. And I
think that $25,000 is appropriate.
THE COURT: Considering that we eventually found
him in Nebraska, Mr. Caton, boy, $25,000 seems to be
really on the money.
MR. CATON: I have some things to say that may
affect the cash amount. I don’t have the judgment role
with me, but is it true that Mr. Dixon got a $10,000
cash bail?
THE COURT: Could well be.
[4] MR. CATON: It may be academic, but this man
is 26, single, he has two children in Milwaukee. He’s
been residing with the mother, Sandra Hall, at 5424
10
West Garfield. He had been in Milwaukee three years.
He’s got some extended family in Milwaukee, including
his mother at 1833 North 25th, Rosie Rogers. He has six
siblings in Milwaukee.
His prior record consists of a conviction in 1980 for
a robbery. He’s a high school graduate. He’s in good
health. He needs to deal with cocaine abuse. He’s had
some cardiac complications as a result of his cocaine
abuse.
What I would ask you to consider is that when he
learned that authorities from Wisconsin were seeking
him in Omaha, he turned himself in and then he waived
extradition to come back to Milwaukee. That he has roots
here; that he does not have a lengthy prior record.
$25,000, I believe, is excessive under the circumstances
given the other conditions—rather, elements of the bail.
THE COURT: One of the things that I asked at the
hearing of Mr. Dixon was where were the other guys.
And the officer who was standing here—either the officer
whe was standing here or the District Attorney who
was standing here had some knowledge of the [5] sur-
rounding facts. And his indication was that they believe
that the jurisdiction was left behind by the other two
because they knew that Mr. Dixon had been captured by
the police. And apparently we still have one out. And
he has still taken his leave of our hospitality.
Now, I recognize fully, fully the ties that Mr. McNeil
has to this community. However, I must also recognize
that having committed what are clearly some of the most
serious offenses that we have on the books, that he has
taken leave of our hospicality. He may have had second
thoughts, but as we approach trial he may have second
thoughts again. It looks like a very, very serious case.
He demonstrated his interstate capability. And it
occurs to me that in order for me to be satisfied that
Mr. MeNeil is going to remain with us, that he will have
to get sufficient numbers of his friends and relatives to-
gether to come up with $25,000 cash. I recognize fully
11
that he himself may not have those assets, but his assets
and his strength and it is no less an asset than cash
in the bank, is your friends, your relatives and com-
munity ties. It’s your reputation. If they believe he’s
going to stay, I have no doubt that they will come up
with $25,000.
MR. CATON: We request a preliminary examination.
as THE COURT: Carl, did you have anything to
add?
MR. MANSKE: We’re just recommending that we
supervise him on a—supervise him while the case is
pending and that we do random urine surveillance and
some drug treatment.
THE CLERK: 5-28, 1:30.
12
MILWAUKEE COUNTY SHERIFF’S DEPARTMENT
STATEMENT OF YOUR RIGHTS
Place 821 W. State
Date 05-22-87
Time 755 PM
Before we ask you any questions, it is my duty to advise
you of your rights.
You have a right to remain silent
Anything you say can and will be used against you in
a court of law.
You have the right to consult with a lawyer before ques-
tioning and to have a lawyer present with you during
questioning.
If you cannot afford to hire a lawyer, one will be ap-
pointed to represent you at public expense before or dur-
ing any questioning if you so wish.
If you decide to answer questions now without a lawyer
present, you have the right to stop the questioning and
remain silent at any time you wish, and the right to ask
for and have a lawyer at any time you wish, including
during the questioning.
WAIVER
Do you understand each of these rights? Yes.
Realizing that you have these rights do you wish to
answer questions or make a statement now? Yes.
WAIVER OF RIGHTS
I have read this statement of my rights and I fully
understand what my rights are. I am willing to make a
ee ee ee ee
13
statement and answer questions. I do not want a lawyer
at this time. I understand and know what I am doing.
No promises or threats have been made to me and no
pressure or coercion of any kind has been used against
me.
Signed /s/ Paul McNeil
Witness: /s/ [Illegible] Detective
Witness:
Time: 8 PM—(2000 Hrs)
14
STATE OF WISCONSIN
CIRCUIT COURT
BRANCH IV
RACINE COUNTY
87CF337
STATE OF WISCONSIN,
Plaintiff,
vs.
PAUL MCNEIL,
Defendant.
DECISION
Motion was brought before the Court for a new trial
based on ineffective assistance of counsel. The defendant
bases his claim because during a motion to suppress state-
ments taken from the defendant, the Court was not pre-
sented with the proper record, nor was the case of U.S.
Ex rel Espinoza vs. Fairman, 813 F. 2d, 117 (7th Cir.
1987) argued to the Court, which would have enabled it
to make a proper decision suppressing all statements of
the defendant.
To prevail on this motion, the defendant must show
that counsel’s performance was deficient and that the de-
ficient performance prejudiced the defense.
The case which is cited by the defense is a case decided
by the Seventh Circuit Court of Appeals, and it had been
decided several months prior to the date of the motion
brought before the Court. It is uncontroverted that there
are no Wisconsin cases that have decided this issue in
the same manner as the Seventh Circuit Court has.
{
15
There is also case law to the effect that the state courts
are not bound by all decisions of the federal courts, and
that the Seventh Circuit case may not be precedential.
The Court having heard testimony and having read the
law presented by the parties makes the following Find-
ings of Fact:
That defense counsel’s performance was not deficient.
That the record as a whole, and the Court has gone
over the whole record, shows that counsel argued at
length the motions to suppress and submitted briefs to
that effect and represented the defendant in a way which
was more than just able and competent.
That the nonarguing of this federal case before the
trial court was not a deficient performance which would
have prejudiced the defense.
The Court, after looking at the whole record, finds
that its decision on motions to suppress would have been
the same even if that case would have been argued, as
there are no Wisconsin cases upon which the Court could
have relied. Therefore, the motion of the defendant is
denied.
Dated February 28, 1989.
BY THE CouRT:
/s/ Emmanuel J. Vuvunas
HON. EMMANUEL J. VUVUNAS
Branch IV
16
LN COURT OF APPEALS OF WISCONSIN
DISTRICT II
No. 89-0539-CR
STATE OF WISCONSIN,
Plaintiff-Respondent,
We
PAUL MCNEIL,
Defendant-A ppellant.
CERTIFICATION
[Filed Nov. 1, 1989]
Before Brown, P.J., Scott and Nettesheim, JJ.
Pursuant to Rule 809.61, Stats., this court certifies the
appeal in this case to the Wisconsin Supreme Court for
its review and determination.
ISSUE
Does an accused’s request for counsel at an initial
appearance on a charged offense constitute an invocation
of his fifth amendment right to counsel that precludes
police-initiated interrogation on unrelated, uncharged
offenses? '
1 McNeil raises two additional issues on appeal. He argues that:
(1) the state deliberately delayed the filing of the murder charge
to further interrogate him so as to obtain a “sew-up” confession,
thereby violating his right to due process of law; and (2) the trial
court erred in refusing to allow him to withdraw his guilty plea.
Upon a review of the record, we conclude that resolution of neither
of these issues would resolve the issue that we certify.
17
FACTS
On May 21, i987, Paul M. McNeil was escorted from
Ohama, Nebraska by two Milwaukee county deputies act-
ing on a criminal complaint and warrant charging
MeNeil with an armed robbery in West Allis. The depu-
ties knew that McNeil was also a suspect in a Racine
county murder and robbery.
The day before, while McNeil was in custody in the
Omaha jail, the deputies had advised him of his Miranda
rights. He declined to talk to them and the conversation
ended. On the way back to Milwaukee, the deputies did
not question McNeil about either the Milwaukee county
robbery or the Racine county murder and robbery, but
told him it would be to his advantage to tell his side of
the story.
An initial appearance on the Milwaukee county rob-
bery was held on May 22, 1987. McNeil was represented
by a public defender. Later that evening, a Milwaukee
county detective went to McNeil’s cell to question McNeil
about the robbery. After being advised of his rights and
signing the waiver, McNeil himself brought up the Racine
county murder. The questioning remained on that subject
for the rest of the session.
Questioned again on May 24 and 26 about the Racine
county crimes, McNeil gave inculpatory statements.
Prior to each interrogation session, McNeil was advised
of his rights and signed a waiver of them. On May 27,
a criminal complaint was filed formally charging him
with the Racine county murder and robbery. Motions to
suppress his inculpatory stqtements were denied. Upon
a plea of no contest, he was ultimately convicted of being
a party to the crimes of second-degree murder, attempted
first-degree murder and armed robbery.
McNeil now appeals the denial of the suppression mo-
tions, asserting that the statements were obtained in
violation of his fifth amendment right to counsel.
18
DISCUSSION
McNeil contends that his request for counsel at the
initial appearance constituted an invocation of his right
to counsel under both the fifth and sixth amendments.
He further claims that such invocation precluded all fur-
ther police-initiated interrogation without the presence
of counsel whether the interrogation concerned the
charged offenses or an uncharged, unrelated one.
The fifth amendment’s prohibition against compelled
self-incrimination requires that custodial interrogation be
preceded by advice that the individual has the right to
remain silent and also the right to the presence of an
attorney. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
When an accused invokes his fifth amendment right to
have counsel present during custodial interrogation, un-
less he himself initiates the communication, exchanges or
conversations with the police, he is not subject to further
interrogation on that charge until counsel has been made
available to him. Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). Even if he has been advised «f his rights,
a valid waiver cannot be established by showing only that
he responded to further police-initiated custodia] inter-
rogation. Jd. at 484.
The Edwards rule has been expanded to apply when
an accused invokes his sixth amendment right to counsel.
Michigan v. Jackson, 475 U.S. 625, 636 (1986). Thus,
invoking one’s sixth amendment right to counsel on a
given offense, as McNeil did in accepting representation
at the initial appearance on the Milwaukee county rob-
bery, precludes further police-initiated interrogation on
that charge unless counsel is present. /d.
When invoked on fifth amendment grounds, the Ed-
wards rule has also been expanded to include uncharged
offenses. Arizona v. Roberson, 486 U.S. 675, ——, 108
S. Ct. 2093, 2099 (1988). Under Roberson, when a sus-
pect invokes his fifth amendment right to counsel during
19
custodial interrogation, the rule bars police-initiated in-
terrogation even on a separate, unrelated offense. /d.
However, McNeil does not claim that he specifically in-
voked his fifth amendment right to counsel during cus-
todial interrogation.
But McNeil does assert that the Edwards rule should
be applied in his case nonetheless. He argues that be-
cause he was in continuous custody, invocation of his
sixth amendment right to counsel should trigger the fifth
amendment-based Edwards rule as to any other offense
as well. In other words, he contends that acceptance of
the public defender’s services at the initial appearance
constituted a general request for the assistance of coun-
sel, a request broad enough to also preclude police-
initiated questioning, in the absence of counsel, on other
charges.
Wisconsin courts have never addressed this precise
question.2, The Seventh Circuit Court of Appeals has,
however, in United States ex rel. Espinoza v. Fairman,
813 F.2d 117 (7th Cir.), cert. denied, 483 U.S. 1010
(1987), and McNeil urges that Wisconsin follow its lead.
The facts in Espinoza closely parallel those in MecNeil’s
case. Espinoza, arrested on a weapons charge, was repre-
sented by counse! at his arraignment on that charge.
Later, while still in custody but without the presence of
counsel, he was interrogated about an unrelated murder
to which he confessed. At his trial on the murder charge,
the court denied his motion to suppress the confession,
and he was convicted.
2 This court addressed a similar, though not identical, scenario
in State v. Lale, 141 Wis.2d 480, 415 N.W.2d 847 (Ct. App. 1987).
There, expressly adopting Maine v. Moulton, 474 U.S. 159 (1985),
and Moran v. Burbine, 475 U.S. 412 (1986), we held that an un-
represented defendant’s incriminating statements to the police on
unfiled charges were admissible because the sixth amendment right
to counsel was not implicated as to those charges. Lale did not,
however, address the fifth amendment question McNeil poses.
20
After exhausting his state remedies, Espinoza peti-
tioned for a writ of habeas corpus. The district court
granted the writ, holding that Espinoza had both a fifth
and sixth amendment right to counsel at the interrogation
and that he had not validly waived either right.
The Seventh Circuit Court of Appeals affirmed the
decision, but on different grounds. The appeals court dis-
agreed that a sixth amendment right to counsel attached
at the time of interrogation. /d. at 120. Though Es-
pinoza plainly had a fifth amendment right to counsel at
that point, he had not invoked it. However, the court
determined that the invocation at his arraignment of his
sixth amendment right to counsel also constituted an in-
vocation of ‘is “fth amendment right. The court held
that, absent +n. oe to the contrary, an individual who
requests course: ai the time of his arraignment on a
criminal charge is presumed to invoke both his fifth and
sixth amendment rights to counsel. Jd. at 123.
The state argues that Wisconsin need not, and should
not, follow Espinoza. Espinoza need not be followed be-
cause federal appeals court decisions are not binding on
Wisconsin state courts. Thompson v. Village of Hales
Corners, 115 Wis.2d 289, 307, 340 N.W.2d 704, 713
(1983).
Espinoza should not be followed, the state continues,
because it contends the decision is wrong. The state
maintains that requesting counsel at an initial appear-
ance does not invoke one’s fifth amendment right to coun-
sel, and thereby tigger the Edwards rule, because a fifth
amendment right to counsel attaches only when an ac-
cused is both in custody, United States v. Henry, 447 U.S.
264, 273 n.11 (1980), and subject to interrogation, Rhode
Island v. Innis, 446 U.S. 291, 298 (1980). MeNeil was
in custody at the initial appearance, but he was not sub-
ject to interrogation.
21
The state further asserts that requesting counsel at
an initial appearance does not trigger the Edwards rule
as to other, unrelated charges because that rule is pro-
phylactic in nature and is meant to protect the exercise
of one’s fifth amendment rights from government coer-
cion. Connecticut v. Barrett, 479 U.S. 523, 528 (1987).
The danger of government coercion is not similarly
present, the state argues, where the accused has not re-
quested counsel either in the context of custodial inter-
rogation or in response to Miranda warnings. In fact,
McNeil was questioned on the separate charge only after
being fully, and repeatedly, apprised of his Miranda
rights, including the right to cou” vel.
In further support of the premise that his request for
counsel at the initial appearance on the robbery charge
invoked his fifth amendment right to counsel for all pur-
poses, McNeil maintains that an invocation of the right
to counsel is to be given a “broad, rather than a narrow,
interpretation.” Espinoza, 813 F.2d at 123 (quoting
Jackson, 475 U.S. at 633). McNeil claims the state failed
to show that he intended to limit the exercise of his right
to counsel to the initial appearance on the robbery charge,
and therefore it must be presumed that he intended also
to invoke his fifth amendment right.
The state counters that the issue is not how broadly
the request for counsel should be interpreted, but whether
such a request was made at all. Moreover, interpretation
is required only where the individual’s words, understood
as ordinary people would understand them, are ambigu-
ous. Barrett, 479 U.S. at 529. Here, McNeil himself
brought up the Racine county crimes and signed several
written waivers of his right to counsel. In addition, he
questioned the necessity of the repeated Miranda warn-
ings, stating he understood his rights because he had been
advised of them numerous times.
In sum, several United States Supreme Court cases
offer a measure of direction on the resolution of this case,
22
though none answers it completely. Edwards holds that
once the fifth amendment right to counsel is invoked dur-
ing custodial interrogation, no further interrogation with-
out counsel is allowed unless the individual initiates it.
Under Jackson, further police-initiated interrogation on
the same charge is prohibited whenever the sixth amend-
ment right to counsel is invoked, not just during custodial
interrogation. And Roberson says that invoking one’s
fifth amendment right to counsel during custodial inter-
rogation precludes further police-initiated interrogation,
without counsel, on any charge.
MeNeil does not claim to have specifically invoked his
fifth amendment right to counsel. He argues that the
invocation of his sixth amendment right at the initial
appearance on the Milwaukee county armed robbery
charge should also be construed as an invocation of his
fifth amendment right to counsel as to any other offenses
because he was in continuous custody. MecNeil’s position
is consistent with that assumed by the Seventh Circuit
in Espinoza,
CONCLUSION
No Wisconsin law exists on the precise scope of the
rights invoked when an individual requests the assistance
of counsel. Supreme Court direction is desirable. For
these reasons, we respectfully certify this case to the
Wisconsin Supreme Court for review and determination,
pursuant to Rule 809.61, Stats.
23
SUPREME COURT OF WISCONSIN
No. 89-4539 CR
STATE OF WISCONSIN,
Plaintiff-Respondent,
Vv.
PAUL MCNEIL,
Defendant-A ppellant.
Argued January 26, 1990—Decided May 2, 1990
(On certification from the court of appeals)
STEINMETZ, J. The issue certified is whether an
accused’s request for or appearance with counsel at an
initial appearance on a charged offense constitutes an
invocation of his fifth amendment right to counsel that
precludes police-initiated interrogation on unrelated, un-
charged offenses. The trial court answered “no” and
we agree.
Other issues in the case include whether the state il-
legally delayed filing the murder charges to conduct fur-
ther investigation so as to obtain a sew-up confession.
The trial court answered “no.” We do not believe the
issue presented is consistent with the facts.
Another issue before us is whether the defendant’s
statements should have been suppressed because they
were obtained in violation of the defendant’s fifth amend-
24
ment right to be silent. The trial court answered “no”
and we agree.
The final issue raised is whether the trial court should
have allowed the defendant to withdraw his guilty plea
and granted him a new trial. The trial court answered
“no” and we agree.
The case is before the court by certification from the
court of appeals granted pursuant to Rule 809.61, Stats.
Paul McNeil, the defendant-appellant, seeks review of
a judgment of conviction entered on March 18, 1988.
Racine county circuit court Judge Emmanuel J. Vuvunas
entered judgments of convictions against the defendant
for the crimes of party to second-degree murder, party
to attempted first-degree murder, and party to armed
burglary. The sentence imposed by the judge was an in-
determinate term of not more than 20 years for the party
to second-degree murder conviction, 20 years for om
party to attempted first-degree murder, and 20 years for
party to armed burglary, all counts to be consecutive to
one another for a total of 60 years.
This matter was initiated by a felony warrant request
by Sergeant Robert Stauss of the town of Caledonia
Police Department of the Racine county district attor-
ney’s office. The complaint was issued on May 27, aa
by the then Racine county District Attorney Geral
Ptacek.
The warrant was served on the defendant who was
being held in the Milwaukee county jail on an unrelated
armed robbery charge and was brought before a Racine
county magistrate on June 4, 1987. A preliminary ex-
amination was held on June 11, 1987, and subsequently
various motions including motions to suppress the de-
fendant’s statements were filed. Judge Vuvunas denied
the motions to suppress after five hearings were held.
A postjudgment notice of motion and motion to with-
draw the guilty plea were presented. The motion re-
25
quested a withdrawal of the defendant’s guilty plea as
a result of a manifest injustice because the court had
ruled improperly when it ruled in favor of the state and
against the claim of ineffective assistance of counsel.
McNeil argued that defense counsel was incompetent
during the course of the hearings on suppression of state
ments because counsel did not bring to the court’s atten-
tion the most recent case law and supporting facts deal-
ing with defendant’s situation.
On hearings on the motion to withdraw the guilty plea,
Judge Vuvunas ruled that trial counsel had not been
ineffective and that he was now considering the case law
and record which may not have been available earlier.
He stated that even if he had been aware of the case law
at the time he made his original decision, he would have
ruled the same way and allowed the defendant’s state-
ments to be admitted into evidence.
The development of this case begins on May 21, 1987,
when two Milwaukee county deputies escorted the de-
fendant back to Milwaukee from Omaha, Nebraska.
They had taken defendant into custody on a criminal
complaint and warrant charging him with an armed rob-
bery arising out of an incident in the city of West Allis
in Milwaukee county. The following day, May 22, 1987,
the defendant was brought before court commissioner
Frank J. Liska, Jr. in Milwaukee county. Bail was set
and the matter was scheduled for a preliminary examina-
tion. The defendant had an attorney with him in court
at that time.
Later in the day on May 22, and again on May 24 and
May 26, still in the custody of the Milwaukee authorities,
the defendant was interrogated regarding the episode
that was to provide the basis for the criminal charges
in this Racine county prosecution. Those charges were
made by the filing of a criminal complaint on May 27,
1987. An initial appearance on those charges was held
on June 4, 1987, in Racine county pursuant to a writ.
26
The critical question that must be answered in resolv-
ing the issue of the admissibility of the defendant’s state-
ments is whether an accused who has requested counsel
at his initial appearance has thereby invoked not only
his sixth amendment right to counsel, but his fifth amend-
ment right to counsel as well.
The defendant appeared at his initial appearance in
Milwaukee county for the unrelated offense of robbery.
There he was represented by an attorney from the pub-
lic defender’s office. The record does not reveal whether
he requested counsel at his initial appearance, only that
he appeared with counsel at that appearance.
Defendant contends that since he appeared with coun-
sel at the initial appearance on the unrelated Milwaukee
county charge which triggered his sixth amendment right
to counsel, he could not be subject to any further inter-
rogation by the authorities about any offenses, including
the Racine county offenses charged in this case, unless
he initiated further communication, exchanges, or con-
versations with the police pursuant to Edwards v. Ar-
zona, 451 U.S. 477 (1981). Under the Edwards rule,
when a suspect invokes his fifth amendment right to
counsel during a custodial investigation, no further in-
terrogation may be co..menced by the authorities until
counsel has been made available to him, unless he him-
self initiates further communication, exchanges, or con-
versations with the police. /d. at 484-85.
The defendant contends that his appearance with coun-
sel at the initial hearing on the Milwaukee county
charges constituted an invocation of his sixth amendment
right to counsel that under the fifth amendment Edwards
rule precluded the police from initiating any further in-
terrogation of him, including questioning regarding the
unrelated Racine county crimes. He argues that because
it was the police that initiated the further interrogation
that produced his statements regarding the Racine county
27
crimes, those statements should have been suppressed
under the Edwards rule.
There are two distinct rights to counsel when a defend-
ant is interrogated by the police. The first is the fifth
amendment right to counsel recognized in Miranda v.
Arizona, 384 U.S. 436, 470 (1966). That right applies
whenever a defendant is subjected to custodial interroga-
tion irrespective of whether or not he has been formally
charged with the offense to which the interrogation re-
lates. Jd. at 471. That right to counsel is not directly
conferred by the fifth amendment, but rather is a pro-
phylactic rule designed to safeguard the privilege against
self-incrimination that is directly conferred by the fifth
amendment. See Solem v. Stumes, 465 U.S. 638, 644 n.4
(1984).
The other right to counsel potentially applicable at
an interrogation is the guarantee of the assistance of
counsel in criminal proceedings directly conferred on a
defendant by the sixth amendment.' That right to coun-
sel attaches only “at or after the time that judicial pro-
ceedings have been initiated against [the accused |—
‘whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.’” Brewer v.
Williams, 430 U.S. 387, 398 (1977). Such right is only
applicable to interrogation that occurs subsequent to the
initiation of formal judicial proceedings relating to the
charge about which the interrogation is concerned.
'The Sixth Amendment to the United States Constitution pro-
vides:
In all criminal prosecutions, the accussed shall enjoy the right
to a speedy and public trial by an impartial jury of the State
and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation:
to be confronted with the witnesses against him: to have com-
pulsory process for obtaining witnesses in his favor and to
have the Assistance of Counsel for his defense.
28
Although it was initially recognized only in the fifth
amendment context, the Edwards rule also applies to an
invocation of the sixth amendment right to counsel.
Thus, the Edwards rule also applies whenever an accused
invokes his sixth amendment right to counsel, not just
when he invokes it during the course of custodial inter-
rogation. The invocation of right to counsel at an initial
appearance will therefore trigger the Edwards rule. See
Michigan v. Jackson, 475 U.S. 625, 636 (1986).
While the Edwards rule applies to both the fifth and
sixth amendment rights to counsel, the scope of its appli-
cation differs depending on which of the two rights is
being invoked. In the fifth amendment context, an in-
vocation of the right during custodial interrogation pre-
cludes further questioning on any offense, not just the
one that was the subject of the interrogation. Arizona v.
Roberson, 486 U.S. 675, 685 (1988) (distinguishing the
sixth amendment right to counsel from the fifth amend-
ment prophylactic right to counsel to protect against
self-incrimination).
In contrast, an invocation of the sixth amendment right
to counsel un one offense does not trigger the Edwards
rule with respect to interrogation on other offenses, at
least not those that have not been charged. As to the
uncharged offenses, an accused has no sixth amendment
right to counsel, so interrogation on those uncharged of-
fenses cannot be deemed “in derrogation of [the] Sixth
Amendment right invoked [by the accused] at his arraign-
ment” on a charged offense. People v. Buckles, 155 Mich.
App. 1, 399 N.W.2d 421, 423 (1986). Since there is no
sixth amendment right to counsel on uncharged offenses,
an invocation of that right at an initial appearance or
arraignment on a charged offense does not bring the ex-
panded scope of the fifth amendment Edwards rule into
play with respect to interrogation on uncharged offenses.
See Moran v. Burbine, 475 U.S. 412, 431 (1986); Maine
v. Molton, 474 U.S. 159, 180 n.16 (1985).
29
The defendant cites a case from the Seventh Circuit
Court of Appeals as indistinguishable. United States ex
rel. Espinoza v. Fairman, 813 F.2d 117, 123 (7th Cir.
1987), expressly held: “that individuals who invoke their
right to counsel at their arraignment are invoking both
their Sixth Amendment and their Fifth Amendment
rights.” This court is not bound by the Espinoza hold-
ing as precedential value. State v. Webster, 114 Wis.
2d 418, 426 n.4, 338 N.W.2d 474 (1983).
Likewise, the United States Supreme Court has re-
cently ruled on Butler v. McKeillar, US.
(March 5, 1990). The facts in Butler indicate that, un-
like McNeil, the defendant invoked his fifth amendment
right to counsel upon arrest on an unrelated assault and
battery charge. The defendant then retained counsel who
appeared with him at a bond hearing on the unrelated
charge on August 31, 1980. The defendant was subse-
quently informed that he was a suspect in a murder. He
was read his Miranda rights, stated he understood his
rights and signed two waiver forms. The defendant was
interrogated concerning the murder and confessed. At
no time did he request counsel during this interrogation.
The defendant was charged with the murder and
convicted.
The issue before the United States Supreme Court in
Butler concerns the retroactivity on collateral attack of
Roberson. The Butler Court held that Roberson was not
retroactive on collateral attack, and it affirmed Butler’s
conviction.
Although proponents of Espinoza and cases following
the holding in “spinoza might interpret Butler as chang-
ing Roberson to affect an outcome on the certified issue
now before us that is on all fours with Espinoza, we
disagree. We continue to interpret Roberson to apply
only to the invoked fifth amendment prophylactic pro-
30
tection of “having an attorney present to counteract the
inherent pressures of custodial interrogation ....” Rob-
erson, 486 U.S. at 685.
We do not read Butler and Roberson as affecting a
transmutation of the sixth amendment right to counsel
into a fifth amendment right to counsel. We hold that a
defendant does not invoke his or her fifth amendment
right to counsel by invoking the sixth amendment right
to counsel at an initial appearance.
The fifth amendment right to counsel recognized in
Miranda is not one that attends a criminal suspect under
all circumstances and in every situation. Rather, it at-
taches only when an accused is in custody, United States
v. Henry, 447 U.S. 264, 273 n. 11 (1980), and subject to
custodial interrogation. Rhode Island v. Innis, 446 U.S.
291, 198 (1980). An accused may well be in custody at
an initial appearance, but he is not being subjected to
interrogation. Thus, there is no fifth amendment right
to counsel at an initial appearance. When an accused
invokes his sixth amendment right to counsel at that ap-
pearance, there is no basis for concluding that he is in-
voking his fifth amendment right to counsel.
Connecticut v. Barrett, 479 U.S. 523, 528 (1987),
which discusses the fifth amendment right to counsel,
instructs that one should examine the issue by “refer-
ence to [the] prophylactic purpose” of Miranda and,
therefore, of the Edwards rule. By doing this, one
reaches the conclusion that a sixth amendment request
for counsel at an initial appearance should not be deemed
an invocation of the fifth amendment right to counsel that
would trigger the Edwards rule. The Edwards rule is
“designed to insulate the exercise of Fifth Amendment
rights from the government ‘compulsion, subtle or other-
wise,’ that ‘operates on the individual to overcome free
choice in producing a statement after the privilege has
been once invoked.’” Barrett, 479 U.S. at 528.
31
There might well be legitimate concern that a reinitia-
tion of interrogation after a request for counsel at an
interrogation session or in response to Miranda warnings
would constitute “subtle compulsion” because it might
lead a defendant to question whether the police really
intend to honor his right to counsel. However, when an
accused has not requested counsel in the context of cus-
todial interrogation or in response to Miranda warnings
pursuant to the fifth amendment, but rather invokes his
sixth amendment right at his initial appearance on a
criminal charge, it is difficult to see what “subtle com-
pulsion” would exist if the police were to approach the
defendant and seek to interrogate him on an unrelated
crime after providing a full warning of his Miranda
rights, including the right to counsel.
The defendant relies on language in Jackson, 475 U.S.
at 633-34 n.7, for his position that a request for counsel
at an initial appearance invokes the fifth amendment
right to counsel. The proffered language from Jackson
states:
Although judges and lawyers may understand and
appreciate the subtle distinctions between the Fifth
and Sixth Amendment rights to counsel, the average
person does not. When an accused requests an at-
torney, either before a police officer or a magistrate,
he does not know which constitutional right he is
invoking, he therefore should not be expected to
articulate exactly why or for what purposes he is
seeking counsel. It makes little sense to afford relief
from further interrogation to a defendant who asks
a police officer for an attorney, but permit further
interrogation to a defendant who makes an identical
request to a judge. The simple fact that defendant
has requested an attorney indicates that he does not
believe that he is sufficiently capable of dealing with
his adversaries singlehandedly.
32
Defendant’s reliance is misplaced. In that passage,
the Supreme Court is quoting a passage from the Michi-
gan Supreme Court’s decision in People v. Bladel, 421
Mich. 39, 63-64, 365 N.W.2d 56, 67 (1984). However,
the Michigan Supreme Court in its decision expressly
held that a defendant who requests counsel at an ar-
raignment only invokes the sixth amendment right to
counsel and does not thereby invoke his fifth amendment
right to counsel. Bladel, 421 Mich. at 52-53, 365 N.W.2d
at 62; see also Jackson, 475 U.S. at 630 n.4 (noting that
the Michigan court did not rely on the fifth amendment
and expressly refusing to comment on the Michigan
court’s fifth amendment analysis).
The language in Jackson, which requires a broad in-
terpretation to be accorded a defendant’s invocation of
his sixth amendment right to counsel, does not mean that
the court must transmute the invocation of that right
into an invocation of another right, the fifth amendment
right to counsel. Rather, in context, the Jackson decision
used the quoted passage from Bladel in an attempt to
assess how broadly to interpret the defendant’s invoca-
tion of only his sixth amendment right to counsel. The
Jackson court refused to accept the state’s argument that
the defendant’s sixth amendment request for counsel in
Bladel was a limited invocation applying only to repre-
sentation in formal legal proceedings. Instead, the Court
stated that “the settled approach to questions of waiver”
required a broad interpretation be placed on the defend-
ant’s request. Jackson, 475 U.S. at 633.2 The breadth of
one’s invocation of the sixth amendment right to counsel
is clearly not at issue in the case now before us. At issue
is whether invocation of the sixth amendment right to
counsel automatically transforms into an invocation of
the fifth amendment right to counsel.
2 The facts in Bladel are distinguishable from those in the case
now before us in that at all times Bladel concerned only three counts
of first-degree premeditated murder upon which Bladel was
arraigned.
33
In Barrett, 479 U.S. at 529, the Supreme Court ana-
lyzed the defendant’s unambiguous invocation of his fifth
amendment right to counsel at a custodial interrogation
and the scope of his invocation and gave it the broadest
possible interpretation on consideration of waiver. The
Barrett Court concluded that a fifth amendment request
for counsel at a custodial interrogation before defendant
would give police a written statement did not prohibit the
police from obtaining and using at trial oral statements
volunteered by the defendant. The court rejected the de-
fendant’s argument that “broad effect”? must be given
“to requests for counsel that [are] less than all-inclusive.”
The Supreme Court stated:
Barrett made clear his intentions [he was willing to
give an oral statement, but not a written statement
in the absence of counsel] and they were honored by
police. To conclude that respondent invoked his right
to counsel for all purposes requires not a broad inter-
pretation of an ambiguous statement, but a disre-
gard of the ordinary meaning of respondent’s state-
ment.
479 U.S. at 529-30. (Footnote omitted. )
The “ordinary meaning” of a defendant’s request for
counsel at an initial appearance is only that he is invok-
ing his sixth amendment right to counsel in the pending
prosecution. When a defendant invokes his sixth amend-
ment right to counsel in a pending prosecution by request-
ing or accepting counsel at the initial appearance, it need
not be viewed as an invocation of the fifth amendment
right precluding interrogation on unrelated crimes any
more than the limited invocation of the fifth amendment
right to counsel in Barrett needed to be viewed as an
invocation of the full fifth amendment right.
Other jurisdictions agree with our holding which re-
jects the Espinoza rationale and keeps the prophylactic
protections provided under the fifth amendment right to
counsel separate from the sixth amendment right to
iw
34
counsel. The Michigan Supreme Court in People v.
Crusoe, 433 Mich. 666, —— N.W.2d , 1989 Mich.
LEXIS 2823, 27 [*31] (Dec. 8, 1989), refused to extend
the Roberson rationale beyond its express fifth amend-
ment application to include extension of the sixth amend-
ment invocation of right to counsel to shield the defend-
ant. from postarraignment interrogations on unrelated
charges. In so holding, the Crusoe court expressly re-
jected and reversed the court of appeals decision which
adopted the analysis of Espinoza: “We find no authority
for the adoption of a rule that a defendant’s request for
court appointed counsel at an arraignment invalidates a
waiver of a defendant’s right to counsel per se under
Miranda during a subsequent police-initiated interroga-
tion concerning a different and unrelated offense.” (Foot-
note omitted.) (Citing United States v. Roberts, 869
F.2d 70, 74 (2d Cir. 1989) ).
The Second District Court of Appeals in United States
v. Roberts, 869 F.2d 70, 74 (2d Cir. 1989), asserted that
the situation before it was “quite different from [that]
of Edwards, Jackson and Roberson.” That court said:
“Roberts would have us hold that, once an accused’s Sixth
Amendment right to counsel attaches, his Fifth Amend-
ment rights become unwaivable in the context of a sep-
arate investigation. Such a conclusion comports with
neither the letter nor the spirit of Edwards and its
progeny.” Id.
The court in State v. Stewart, 113 Wash. 2d 462, 780
P.2d 844, 853 (1989) offered an identical conclusion:
In the end, we hold Stewart’s Sixth Amendment
right to counsel did not attach on these burglary
charges until months after his confessions. He did
not invoke his Fifth Amendment right to counsel
when he requested an attorney at an arraignment on
an unrelated charge. The Fifth Amendment right
to counsel exists solely to guard against coercive,
and therefore unreliable, confessions obtained during
35
in-custody interrogation, which was not occurring at
the time Stewart requested counsel. Subsequently,
prior to giving his confession, Stewart was given
Miranda warnings and did not invoke his Fifth
Amendment right at that time. There has been no
showing of confusion on the part of the defendant,
nor trickery on the part of the State. Extension of
the Edwards rule to this fact scenario would con-
stitute a misapplication of that prophylactic rule.
The defendant next complains that there was an un-
reasonably long detention before his initial appearance
on the Racine county charges that requires suppression
under the rule in Phillips v. State, 29 Wis. 2d 521, 534,
139 N.W.2d 41 (1966). Regarding the nature of the
Phillips rule and what is ultimately at issue when a
Phillips claim is raised, this court has stated:
The suppression of sew-up confessions is based on
the rule that a defendant who has not yet been
charged may be taken into custody and interrogated
only for a period reasonably necessary for the State
to decide whether to release him or to make a formal
complaint. A detention for any longer period violates
due process and renders any confession obtained dur-
ing the unreasonable period inadmissible. Briggs v.
State, 76 Wis. 2d 313, 323, 251 N.W.2d 12 (1977) ;
Klonowski v. State, 68 Wis. 2d 604, 229 N.W.2d 637
(1975) ; Phillips v. State, 29 Wis. 2d 521, 534-5, 139
N.W.2d 41 (1966). However, ‘A confession does
not become inadmissible as a “sew-up” confession
merely because the state, prior to the confession, had
information sufficient to sustain a charge. The ques-
tion revolves solely on the point whether the delay
was inordinate and the detention illegal.’ Briggs v.
State, supra at 324; Krueger v. State, 53 Wis. 2d
345, 357, 192 N.W.2d 880 (1972).
State v. Benoit, 83 Wis. 2d 389, 404-05, 265 N.W.2d 298
(1978).
36
We hold that the facts of this case are not consistent
with a conclusion that the Phillips rule was violated. Mc-
Neil promptly appeared before a judicial court commis-
sioner on the Milwaukee county armed robbery charge
for which he had been arrested and for which he was in
custody. The timely appearance rendered his subsequent
detention in the Milwaukee county jail lawful. The
statements regarding his conduct in Racine county were
given while he was in lawful custody in Milwaukee
county.
The defendant’s argument on this issue then seems to
switch from the due process concerns of the Phillips
rule to an examination of a possible sixth amendment
violation under State v. Lale, 141 Wis. 2d 480, 415
N.W.2d 847 (Ct. App. 1987). Here, McNeil suggests
that the state deliberately delayed filing the Caledonia
murder charges as a pretext to allow further investiga-
tion of these unfiled charges without fear of violating
his sixth amendment right to counsel. This is a direct
reference to principles discussed in Lale wherein the
court of appeals adopted as law combined interpretations
of Moulton, 474 U.S. 159, and Burbine, 475 U.S. 412,
which state that a defendant’s sixth amendment right to
counsel is not involved when the police obtain incriminat-
ing statements on unfiled charges that are unrelated to a
led charge.
The court of appeals in Lale noted the existence of a
possible exception to this rule which the defendant argues
is applicable here. The exception states that a possible
violation of the sixth amendment may occur when “the
government formally files on some charges but delays
filing of another charge as a pretext to facilitate investi-
gation of that unfiled charge without being hampered by
the sixth amendment... .” Lale, 141 Wis. 2d at 489.
The court of appeals suggested that under such circum-
stances “bad faith may exist.” /d.
37
Here, on December 14, 1987, at the defendant’s hearing
on the motion to suppress the confession, the trial court
on the facts presented expressly refused to find any bad
faith in how the authorities handled this case. The court
specifically stated:
I don’t think there has been any showing that there
was conduct in bad faith being done here. I think the
officers who were going through this in a case which
involves a defendant who was involved in lots of dif-
ferent problems. Involved in several different investi-
gations. Certainly from the testimony that’s come
through here, I don’t think there’s been any showing
like that at all.
The trial court’s findings of fact on the bad faith issue
will not be overturned unless clearly erroneous, State
v. Owens, 148 Wis. 2d $22, 929, 436 N.W.2d 869 (1989).
Here, the defendant has offered no showing to support a
determination that the trial court’s findings were clearly
erroneous. Thus, the trial court’s refusal to find bad
faith removes this case from the Lale exception, and we
agree with the trial court that McNeil’s sixth amendment
right to counsel under the Lale theory has not been
violated.
The defendant next claims his statements should have
been suppressed because the police did not ‘‘scrupulously
honor” his request to remain silent as they are required
to do under the United States Supreme Court’s decision
in Michigan v. Mosley, 422 U.S. 96 (1975). Determining
whether the right to silence has been scrupulously hon-
ored required the application of constitutional principles
to the facts of the case and is subject to independent
appellate review.
There are five factors that are to be considered in
deciding whether an invocation of the right to silence has
been “scrupulously honored.” Those factors as adopted
from Mosley, 423 U.S. at 104-05 and as enumerated in
38
State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866
(1985), are:
(1) The original interrogation was promptly ter-
minated. (2) The interrogation was resumed only
after the passage of a significant period of time....
(3) The suspect was given complete Miranda warn-
ings at the outset of the second interrogation. (4)
A different officer resumed the questioning. (5) The
second interrogation was limited to a crime that
was not the subject of the earlier interrogation.
The factors are not to be woodenly applied. Jd. at 284-
85. They provide a framework of analysis to aid in de-
termining the essential issue of whether the defendant’s
right to silence was scrupulously honored. /d.
All five factors are satisfied in this case. The defend-
ant initially invoked his right to silence and the inter-
rogation was terminated. The questioning was resumed
after the passage of a significant period of time, either
one or two days depending on the version accepted, the
defendant’s or the police. Cf. State v. Turner, 136 Wis.
2d 333, 357, 401 N.W.2d 827 (1987) (periods of 20 and
24 hours have been deemed significant time spans for
Mosley purposes).
Prior to the second and subsequent interrogations, the
defendant was given a full and complete set of Miranda
warnings.*. The officers conducting those interrogations
made sure the defendant understood each of the rights
about which the warnings advised the defendant and
secured an express waiver of them.
A different officer, Officer Butts, resumed the question-
ing at the second interrogation. The defendant’s initial
invocations of his right to silence were made when De-
tective Smukowski attempted to interrogate him. The
3 The advice given by the dissent was fulfilled by the officers in
this case and served as part of the basis for the majority opinion.
i “
39
subsequent interrogations were conducted by different
officers. The second and subsequent interrogations were
restricted to a crime that had not been the subject of the
initial interrogation.
Prior to his arrest and return to Milwaukee, the de-
fendant’s girlfriend had told Officer Butts who initiated
the second interrogation after the defendant invoked
his right to silence that he (the defendant) “wanted to
talk to [the officer] when he got back to Milwaukee.”
With this indication of a desire to talk to the interrogat-
ing officer, it does not appear that McNeil’s previously
invoked right to silence was not scrupulously honored
when that officer approached him and, after giving Mi-
randa warnings, determined that the defendant was
willing to talk to him about his part in the Racine county
town of Caledonia crimes.
“he defendant immediately raised to the police the
subject of the Caledonia incident that provided the basis
for the charges in this case. Notwithstanding his initial
invocation of his right to silence regarding the West Allis
case when he was interrogated in Omaha, the defendant
affirmatively wanted to speak to the police about the
Caledonia crime at issue in this case. Under the cir-
cumstances, there is no basis for finding that his right to
silence wes not scrupulously honored.
The defendant also argues that he should be allowed
to withdraw his guilty plea and should be granted a new
trial. He bases his request on the theory of ineffective
assistance of counsel. The ineffective assistance of coun-
sel argument, which was raised in MeNeil’s notice of
motion and motion to withdraw the guilty plea, was based
on trial counsel’s failure to originally brief and argue
the Espinoza case on pretrial motions to suppress
evidence.
A hearing was held on the motion to withdraw the
guilty plea at which the Espinoza case was argued. Ex-
40
hibits were also accepted into evidence which established
that the defendant had been before a Milwaukee county
magistrate in the morning hours of May 22, 1987, on the
Milwaukee robbery charges and that he was represented
by a state public defender at that time. In relevant part,
the trial court’s decision on the motion stated:
The Court having heard testimony and having read
the law presented by the parties makes the following
Findings of Fact:
That defense counsel’s performance was defi-
cient....
The Court, after looking at the whole record, finds
that its decision on motions to suppress would have
been the same even if that case would have been
argued, as there are no Wisconsin cases upon which
the Court could have relied. Therefore, the motion
of the defendant is denied.
In briefs reviewed by this court, McNeil states that
his ineffective assistance of counsel argument is made
moot by the trial court’s hearing and decision on the
issue. We agree. The argument was made on reliance
of case law that was not and is not precedent in the
state of Wisconsin. McNeil’s defense was therefore not
prejudiced by trial counsel’s failure to expressly argue
Espinoza.
MeNeil then apparently changes his argument on brief
on this issue to assert that the defendant’s sole basis for
entering a no contest plea was the trial court’s denial of
his suppression motion. He argues that the denial of his
motion violated his constitutional rights and therefore
justifies reversal of his conviction and a new trial. This
amounts to an argument that the trial court committed
prejudicial error by denying the motion. Because we
hold against McNeil on all of the issues presented in this
case and because a conclusion that the trial court com-
mitted prejudicial error depends upon our holdings here,
41
we hold that the trial court did not commit prejudicial
error when it denied the suppression motion.
By the Court.—The order of the Racine county circuit
court is affirmed.
CHIEF JUSTICE HEFFERNAN (dissenting). The
majority concludes that an accused who requests counsel
at an initial appearance and remains in continuous cus-
tody has not invoked the fifth amendment right to coun-
sel which precludes police-initiated interrogation on un-
related, uncharged offenses. I disagree.
The majority states that the issue is whether invocation
of the sixth amendment right to counsel automatically
transforms into an invocation of the fifth amendment
right to counsel. (Majority op. at p. —.) The fifth
amendment protection against self-incrimination provides
the right to counsel at custodial interrogations, irrespec-
tive of whether a defendant has been formally charged
or not. Miranda v. Arizona, 384 U.S. 436 (1966), and
Arizona v. Roberson, 486 U.S. 675 (1988). Hence, the
issue in this case is whether the defendant invoked his
fifth amendment right to counsel when he requested as-
sistance of counsel at an initial appearance instead of
while being interrogated afterwards.
I am persuaded that the reasoning of the Seventh Cir-
cuit Court of Appeals in United States ex rel. Espinoza
v. Fairman, 813 F.2d 117 (7th Cir. 1987), cert. denied.
Fairman v. Espinoza, 483 U.S. 1010 (1987), is correct
and should be followed by this court. Espinoza holds that,
when a defendant requests' an attorney at an initial
1 In Espinoza, the defendant accepted the appointment of counsel,
but did not specifically request counsel. The Espinoza court con-
cluded that the defendant’s unqualified acceptance of counsel at his
arraignment was equivalent to a request for counsel and that it was
not necessary for the defendant to specifically request counsel in
order to invoke this right. 813 F.2d at 123.
42
appearance and remains in custody, the court should
presume that the defendant has invoked his fifth amend-
ment right to counsel and police-initiated interrogation
is thereafter prohibited on any crime. See Edwards v.
Arizona, 415 U.S. 477 (1981), and Arizona v. Roberson,
486 U.S. 675 (1988).
The majority rejects the Seventh Circuit’s approach by
distinguishing between a defendant who makes a request
for assistance of counsel to a police officer while subject
to a custodial interrogation and a defendant who makes
a request for assistance of counsel to a magistrate and
thereafter remains in continuous custody. The majority
asserts that, while a defendant is in custody at an initial
appearance, he is aot being interrogated. Because the
defendant is net being interrogated when he makes his re-
quest for an attorney, the majority leaps to the conclu-
sion that there is no danger of compelled testimony and,
therefore, the fifth amendment right to counsel which
arises from the protection against self-incrimination is
not implicated. The majority misreads the holdings of
Miranda v. Arizona, supra, and Edwards v. Arizona,
supra,
Miranda established that the fifth and fourteenth
amendmentst require that, prior to any custodial interro-
gation, defendants be informed of their right to remain
silent and their right to have counsel present “during
custodial interrogation.” See Edwards, 451 U.S. at 481-
482. This does not mean that the request for counsel
must be made “during custodial interrogation.” In Ed-
wards v. Arizona, the Supreme Court established a bright-
line rule that, if a defendant requests counsel while in
custody, police-initiated interrogation must cease until an
attorney is present. Edwards added protection to prevent
police from badgering a defendant into waiving previ-
ously asserted Miranda rights. Oregon v. Bradshaw, 462
U.S. 1039, 1044 (1983). Nowhere does Edwards or any
of its progeny indicate accuseds must assert their Mi-
Ne ee ee
He eS eC a a
43
randa right to counsel while they are being interrogated.
The request must be made while the defendant is in cus-
tody, prior to, or during, an interrogation.
It is apparent that there is danger of “subtle compul-
sion” when a defendant requests the assistance of an
attorney at an initial appearance and is nevertheless sub-
jected to further interrogation while custody continues.
Whether a request for an attorney is made to a police
officer or to a judge, whether in the jail or during an
initial appearance, the dangers of the inherent pressure
of custodial interrogation when not having an attorney
present are the same. Just as the Edwards protection is
not dependant upon the subject matter of the interroga-
tion, neither is this protection dependent upon whether
the request for assistance of counsel is made to a police
officer while in custody or to a magistrate at an initial
appearance before the defendant is interrogated.
Finally, I disagree with the majority that recent
United States Supreme Court decisions provide support
for its position. To the contrary, recent Supreme Court
decisions support the Seventh Circuit Court of Appeals
decision in Espinoza. First, in Arizona v. Roberson, 486
U.S. 675 (1988), the Court resolved a conflict among the
circuits and state courts, accepting the position taken by
the Seventh Circuit in Espinoza, 486 U.S. at 679, n.3.
The Roberson court held that, when a suspect requests
counsel, the fifth amendment bars police-initiated inter-
rogation on any crime, even one which was not the subject
of the original interrogation. Recently, in Butler v. Mc-
Kellar, —— U.S. —— (March 5, 1990) (formerly reported
at Butler v. Aiken), the Supreme Court held that Rober-
son could not be applied retroactively in cases on collat-
eral review and, for that reason, the particular defendant
could not reap the benefit of the rationale of the Espi-
noza court. The issue raised before the Court of Appeals
in Butler was whether Espinoza required the police,
during continuous custody, to refrain from all further
questioning on any offense once an accused invokes his
dd
right to counsel. In resolving this issue, the Fourth Cir-
cuit Court of Appeals rejected the Seventh Circuit’s
holding in Espinoza. Butler v. Aiken, 846 F.2d 255 (4th
Cir. 1988). After the Supreme Court issued its decision
in Roberson, the Fourth Cireuit Court of Appeals, on
defendant’s petition for rehearing, acknowledged that its
decision, rejecting the Espinoza rationale, was doubtful
but that the defendant was not entitled to the retroactive
benefit of Roberson, 864 F.2d 24, 25 (4th Cir. 1988),
reh’g denied. The Supreme Court agreed that Butler was
not entitled to a retroactive application of Roberson.
The court noted the discrepancy between the Seventh
Cireuit and the Fourth Circuit as evidence that the out-
come in Roberson was not clear from the earlier holding
in Edwards and therefore constituted a “new rule,”
hence, not calling for retroactive application. While the
Supreme Court limited its holding to the retroactive
application of Roberson, its approval of Espinoza is
significant. I conclude that the Espinoza court’s analy-
sis of the fifth amendment right to counsel is correct and
implicitly has been approved by the United States
Supreme Court. Therefore, law enforcement officers may
be well advised to comply with Miranda-Edwards stand-
ards whenever a suspect is interrogated under the cir-
cumstances here.* Reliance on the majority’s view of
21 would like to clarify that our advice was not followed by these
officers and does not serve as part of the majority’s opinion. The
majority misinterprets Miranda and its progeny. It is true that
the officers in this case gave Miranda warnings to the defendant
before they interrogated him and after he invoked his fifth amend-
ment right to counsel by requesting an attorney at his initial
appearance. Miranda, however, stands for more than the prophy-
lactic rule that requires law enforcement officers to inform defend-
ants of their right to counsel. Miranda recognized the already
existing fifth amendment right to have counsel present at custodial
interrogations. The fifth amendment right to counsel, as interpreted
in Edwards, requires that police-initiated interrogation cease with
respect to any crime once the defendant has invoked that right.
Accordingly, it was not enough for the police officers in this case
to read the defendant his Miranada rights again. The fifth amend-
ment requires that police-initiated interrogation must cease.
a 5 in ee Oe
ts! want ah
45
what constitutes a constitutionally antiseptic confession
may result in the suppression of crucial evidence. It
would appear to this writer to be prudent to follow Espi-
noza by assuming that defendants who request assistance
of counsel at an initial appearance and remain in custody
have thereby invoked their fifth amendment right te
counsel, and police-initiated interrogation is thereafter
prohibited in respect to any crime unless the suspect
waives his right to counsel.
I respectfully dissent and would reverse the trial
court’s judgment of conviction.
I am authorized to state that Justice Shirley S. Abra-
hamson and Justice William A. Bablitch join in this
dissent.
46
SUPREME COURT OF THE UNITED STATES
No. 90-5319
PAUL McNEIL,
Petitioner
V.
WISCONSIN
ON PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF WISCONSIN
ON CONSIDERATION of the motion for leave to proceed
herein in forma pauperis and of the petition for writ of
certiorari, it is ordered by this Court that the motion to
proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted.
October 29, 1990
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.