Petition for Writ of Certiorari — Stephens v. Wisconsin (No. 08-555)

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, Sr Fg HE Ae A ta PE RAR Bie oe Sees

Supreme Court ft U Is.

(O W 08-555 0cT 23 2008

No. 08°___) cece OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

MARK A. STEPHENS,

Petitioner,

Vv.

STATE OF WISCONSIN,

: Respondent.

On Petition for a Writ of Certiorari

to the Wisconsin Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Jerome F. Buting

Counsel of Record

Kathleen B. Stilling

BUTING & WILLIAMS, S.C.

400 N. Executive Drive

Suite 205

Brookfield, W1 53005

262-821-0999

262-821-5599 (fax)

Attorneys for Petitioner

en. ae ae ee a ie eS ee ae]

QUESTION PRESENTED

1. Should an _ individual be _ required to

affirmatively invoke the right to silence during a

custodial police interrogation with the same degree of

certainty required by the “clear articulation rule” of

Davis v. United States, 512 U.S. 452, 462 (1994), which

requires a suspect to “unambiguously” request counsel

in order to invoke the right to counsel, or should a

broader standard apply, which relies on a presumption

against implicit waiver of important constitutional

rights and comports with the mandate in Miranda v.

Arizona, 384 U.S. 436 (1966), and Michigan v. Mosley,

423 U.S. 96, 100 (1975), that interrogation must cease

if a suspect indicates “in any manner” that he wishes

to remain silent?

2. If the Davis “clear articulation rule” applies to

the right to silence, is a suspect’s statement to a

detective that he did “not want to talk to you anymore,

punk,” a sufficiently clear articulation of his right to

cut-off questioning such that police interrogation must

cease?

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TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

PETITION FOR A WRIT OF CERTIORARI ......

ES 645s oN 'n @ 6 4 0b 6M wie 8 ¥.5-9. 0m

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CONSTITUTIONAL PROVISION INVOLVED ...

STATEMENT OF THE CASE .................

REASONS FOR GRANTING THE WRIT ........

I. This Court should resolve a split of

authority in the state and federal

courts on the question of whether

the “clear articulation rule” of

Davis v. United States, 512 U.S.

452, 462 (1994), which involved

the invocation of the right to

counsel, should apply equally to

the invocation of the right to

I his sit bw era Set aw eas oes

II. This Court should grant certiorari

and rule that even if the “clear

articulation rule” applies to the

right to silence, an individual who

directly and plainly tells a

detective “I don’t want to talk to

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you anymore,” has sufficiently

invoked his constitutional right to

cut-off questioning so that further

questioning must cease............ 16

GCE Sr ee 20

APPENDIX OF PETITIONER: ............ APP 1

WISCONSIN COURT OF APPEALS

OPINION BELOW ............... APP 1-11

WISCONSIN SUPREME COURT

ORDER DENYING REVIEW ..... APP 12-13.

TABLE OF AUTHORITIES

CASES CITED: PAGE

Arizona v. Roberson,

486 U.S. 675, 108 S.Ct. 2093,

400 5.6.90 704 G086) ................ 10

Bowen v. State,

911 S.W.2d 555 (Ark. 1995) ............. 12

Brewer v. Williams

430 U.S. 387, 97 S.Ct. 1232,

eo rr i 14

Burket v. Angelone,

208 F.3d 172 (4th Cir. 2000) ............ 12

iii

ne ete el ne OU Dak oe a ee Th id eee ae Oe

Davis v. Greer,

13 F.3d 1134 (7th Cir. 1994) ............ 18

Davis v. United States

512 U.S. 452, 114 S.Ct. 2350,

129 L.Ed.2d 362 (1994) ............ passim.

Dowthitt v. State,

931 S.W.2d 244 (Tex. Crim. App. 1996) ... 13

Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880,

Si |) 3, 8,9

Evans v. Demosthenes

98 F.3d 1174 (9th Cir. 1996) ............ 12

James v. Marshall

322 F.3d 103 (1st Cir. 2003)............. 11

Law v. State

318 A.2d 859 (Md. App. 1974) ........... 17

McNeil v. Wisconsin

501 U.S. 171, 111 S.Ct. 2204,

Re Ne er G

Medina v. Singletary,

59 F.3d 1095, (11th Cir. 2004) ........... 11

Michigan v. Harvey,

494 U.S. 344, 110 S.Ct. 1176,

oe 9

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Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321,

46 L.Ed2d 313 (1975) .. 3, 6, 7, 8, 10, 13-16, 19

Midkiff v. Commonwealth,

Seer aeeave, 1006) ..... 0.0 cece 13

stamina. tat

384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966) ... 4,6, 7,9, 10, 15, 19

Peonle v. Cohen.

226 A.D.2d 903 (N.Y. App. Div. 1996) ..... 13

People v. Rose,

75 Ill. App.3d 45, 393 N.W.2d 698 (1979) .. 17

Simmons v. Bowersox,

235 F.3d 1124 (8th Cir. 2001) ........... 11

Soffar v. Cockrell ,

300 F.3d 588 (5th Cir. 2002) ............ 12

State v. Bacon,

658 A.2d 54 (Vt. 1995) ................. 13

State v. Belcher,

520 S.2d 303 (Fla. App.3 Dist., 1988) ..... 17

State v. Bishop,

621 P.2d 1196 (Or. App. 1980) ........... 17

State v. Chew,

eee SN Ge. BOSD kc cc cc ws tcl 12

State v. Dagnall,

2000 WI 82, 236 Wis. 2d 339,

612 N.W.2d 680

State v. Farley,

452 S.E.2d 50 (W. Va. 1994)

State v. Goetsch,

186 Wis.2d 1,

519 N.W.2d 634 (Ct. App. 1994)

State v. Hannan,

~ 636 N.W.2d 796 (Minn. 2001)

State v. Hoey,

881 P.2d 504 (Haw. 1994)

State v. Jones,

6 P.3d 58 (Wash. 2000)

State v. Levya,

951 P.2d 738 (Utah 1997)

State v. Markwardt

2007 WI App 242, 306 Wis. 2d 420,

742 N.W.2d 546

State v. Owen,

696 S.2d 715 (Fla. 1997)

State v. Pena,

98 P.3d 857 (Wyo. 2004)

State v. Rogan,

984 P.2d 1321 (Haw. 1999) ............. 12

State v. Strayhand,

911 P.2d 577 (Ariz. 1995) ......... 12, 17, 18

State v. Williams,

535 N.W.2d 277 (Minn. 1995) ........... 13

State of Wisconsin v. Stephens,

=. ~ a

751 N.W.2d 902 (Ct. App. 2008) 1, 5, 6, 14, 19

Stinett v. State,

720 S.W.2d 663 (Tex. App. 1986) ......... 17

United States v. Hurst,

228 F.3d 1124 (8th Cir. 2001) ........... 11

United States v. Nelson,

450 F.3d 1201 (10th Cir. 2006) .......... 11

United States v. Ramirez,

79 F. 3d 298 (2d Cir. 1996).............. 12

United States v. Rodriguez,

518 F.3d 1072 (9th Cir. 2008) ........... 11

CONSTITUTIONS, RULES and STATUTES

Le oS das kb ba oa bak eer 2

U.S. CONST.

Fifth Amendment ........... 2, 6, 11, 13, 20

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No. 08-

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

MARK A. STEPHENS,

Petitioner,

Vv.

STATE OF WISCONSIN,

Respondent.

On Petition for a Writ of Certiorari

to the Wisconsin Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Petitioner Mark A. Stephens petitions for a writ

of certiorari to review the judgment of the Wisconsin

Court of Appeals in the opinion below.

OPINION BELOW

The opinion of the Wisconsin Court of Appeals is

at State of Wisconsin v. Stephens, __ Wis. 2d_, 751

N.W.2d 902 (Ct. App. 2008) and is reprinted, together

with the Wisconsin Supreme Court order denying

review, in the accompanying Appendix at APP 1-13.

JURISDICTION

The Wisconsin Supreme Court entered its order

on July 28, 2008, denying review of the Wisconsin Court

of Appeals’ decision, which was issued on April 23,

2008, and which affirmed the petitioner’s judgment of

conviction. This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in relevant part:

No person shall be . . . compelled in any

criminal case to be a witness against

himself.

U.S. CONST. amend. V.

STATEMENT OF THE CASE

In this case, the Petitioner seeks to better

delineate what is necessary for an individual to invoke

the constitutionally guaranteed right to remain silent

and to cut-off police questioning during a custodial

police interrogation.

The state court of appeals in this case extended

the “clear articulation rule” announced in the right to

counsel context in Davis v. United States, 512 U.S. 452,

462 (1994), to a suspect’s invocation of his right to

remain silent and to cut-off police questioning. Under

the Davis rule, to invoke the right to counsel after once

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waiving that right and agreeing to speak with police, a

suspect must “unambiguously request counsel.” 512

U.S. at 459. However, this Court has never extended

the Davis rule beyond questions relating to the

invocation of the right to counsel under Edwards v.

Arizona, 451 U.S. 477, and there is a split of authority

in the lower federal and state courts on whether this

same rule should apply to a suspect’s attempt to

exercise the right to silence.

As discussed later, there are good reasons to

allow a lesser degree of specificity for a suspect to

invoke the right to silence than Davis announced in the

right to counsel context. The Petitioner invites this

Court to re-examine the Davis rule and the unique set

of policy considerations that led to that rule requiring

an “unambiguous” invocation of the right to counsel,

and to decide whether a different standard is

appropriate for the invocation of the right to silence —

one which relies on a presumption against implicit

waiver of important constitutional rights and comports

with this Court’s mandate in Miranda v. Arizona, 384

U.S. 436 (1966), and Michigan v. Mosley, 423 U.S. 96,

100 (1975), that interrogation must cease if a suspect

indicates “in any manner” that he wishes to remain

silent.

The Petitioner, Mark Stephens, was arrested on

suspicion of having entered a neighbor’s home under

false pretenses with the intent to steal. R.1: 2. He was

transported to the police station where he was

interrogated by two officers. After initially denying

wrongdoing, Stephens eventually gave a statement

admitting to the offense.

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Stephens’ defense attorney filed a motion to

suppress the statement. The following facts were

adduced at a hearing on that motion, during which a

police officer, a detective, and the defendant testified.

At the police station, Stephens was placed in a

small interview room, and had one hand cuffed to the

table during his entire interrogation. R.43: 12, 13. A

police officer read Stephens the Miranda Rights form.

Id. at 16-17. Stephens initially agreed to answer

questions. Id. at 18. He denied wrongdoing, telling that

officer that he had been home all day. Id. at 19-20.

After a while, a detective entered the room and

“took over the interview.” Id. at 41. The detective

aggressively challenged Stephens, and cenfronted him

with alleged physical evidence the police had recovered,

as well as other apparently incriminating facts. Id. at

42. The detective testified that Stephens then became

angry, “slammed his fist on the table and said he was

not going to talk to me anymore and referred to me as

a punk.” Id. at 43, 73. The detective did not leave or

terminate questioning in response to this outburst.

Instead, the detective asked the defendant

whether he “was invoking his right to have

representation or if he would still speak to us.” Id. at 43.

The detective claimed that the defendant “clarified that

he would continue to speak,” but that “[hle was just not

happy talking to me.” Id. The detective said that he

“wanted to clarify again that he was not invoking his

constitutional rights and he clarified that with me.” Id.

The same detective then continued the interrogation

and eventually obtained a confession. The detective was

unable to explain why Stephens continued to

voluntarily speak with him, despite his stated

unwillingness to talk to him anymore. Id.

Stephens testified at the suppression hearing and

denied that he waived his rights and voluntarily

continued to talk to the detective after his outburst. He

testified that the detective became “very aggressive”

and abusive, and he believed the detective was trying to

scare him into talking. Id. at 73. Stephens testified that

he called the detective “a punk” because he didn’t want

to talk to him anymore and “that meant him and

anybody else that stepped into the room.” Id. at 73.

The trial court made a factual finding that

Stephens “slammed his hand on the desk, leaned over

and told [the detective]... he would not talk and he

called [the detective] a punk.” Id. at 104. The court

further found that the detective continued to question

Stephens about this statement, not once, but twice,

ultimately getting a response that Stephens would talk.

Id. Nonetheless, the court denied the motion to suppress

and held that the questioning was appropriate and the

statements were voluntary. Id. at 109-10.

Stephens appealed, and the Wisconsin court of

appeals affirmed the trial court’s pretrial ruling. The

court of appeals applied the “clear articulation rule” of

Davis, APP 4-5, and ruled that Stephens’ statement was

not “a clear articulation that he wanted to terminate

the interrogation and the detective was not required to

immediately walk away.” APP 6. Although the trial

court made no such finding, the court of appeals

interpreted Stephens declaration as a desire not to

continue speaking to one particular officer, and held

that a “declaration that a suspect does not wish to

speak to a specific officer is not the invocation of the

right to silence.” APP 5-6. The Wisconsin Supreme

Court denied review, and this petition follows.’

REASONS FOR GRANTING THE WRIT

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1. This Court should accept review to resolve a

split of authority in the state and federal courts

on the question of whether the “clear

articulation rule” of Davis v. United States, 512

U.S. 452, 462 (1994), which involved the

invocation of the right to counsel, should apply

equally to the invocation of the right to silence.

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A defendant’s Fifth Amendment right to remain

silent encompasses two distinct protections. The first is

the right, prior to questioning, to remain silent unless

the suspect chooses to speak in the unfettered exercise

of his own will. Miranda v. Arizona, 384 U.S. 436, 460,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The second is the

i right to cut off questioning. Michigan v. Mosley, 423

U.S. 96, 103-04, 96 S.Ct. 321, 326, 46 L.Ed2d 313

(1975). Through the exercise of his right to cut off

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questioning, a suspect can control the time at which

i questioning occurs, the subjects discussed, and the

) duration of the interrogation. Id. “Without the right to

; cut-off questioning, the setting of in-custody

4) interrogation operates on the individual to overcome

‘A separate post-conviction issue concerning a breach

i of the plea bargain is not addressed in this petition.

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[his] free choice in producing a statement after the

privilege has been once invoked.” Id. at 100-01. “If the

individual indicates in any manner, at any time prior or

during questioning, that he wishes to remain silent, the

interrogation must cease.” Id. at 100 (emphasis added).

This ensures that the resulting statement is the reliable

product of free will. Id.

Hence, the admissibility of statements obtained

after the person in custody has invoked his right to

silence depends under Miranda on whether his right to

cut off questioning was “scrupulously honored." Mosley,

423 U.S. at 103-04.

However, in recent years the right to silence and

to cut-off custodial police questioning has been

diminished by the decisions of a number of courts which

hold that an individual must unambiguously invoke the

right to silence with the same degree of certainty as a

suspect must request counsel under the “clear

articulation rule” of Davis v. United States. There is

presently a split of authority in the lower courts of this

nation on the question of whether the same standard

utilized by Davis in the right to counsel context, should

also apply to the right to remain silent.

The determination of whether a suspect invokes

his right to counsel is made by application of the “clear

articulation” rule of Davis v. United States, 512 U.S.

452, 114S.Ct. 2350, 129 L.Ed.2d 362 (1994). Under the

Davis rule, to invoke the right to counsel after once

waiving that right and agreeing to speak with police, a

suspect must “unambiguously request counsel.” 512

U.S. at 459. Davis held that a suspect need not say any

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magic words and need not “speak with the

discrimination of an Oxford don,” but must invoke the

right, through an oral assertion or non-verbal conduct

which is clear and unambiguous. Id.

This case now presents a question of federal

constitutional law never addressed by this Court —

whether the Davis “clear articulation rule” rule for the

right to counsel should apply as well to the invocation

of the right to remain silent. There are good reasons

why this Court should grant review and rule that Davis

should not apply to the right to silence.”

The Davis rule developed because of the peculiar

rules unique to the rmght to counsel, especially the

“prophylaxis” applied under Edwards v. Arizona, 451

U.S. 477, 485-86, 101 S.Ct. 1880, 68 L.Ed.2d. 378

(1981). Edwards held that once a suspect invokes his

right to counsel during custodial questioning, the police

officers must cease questioning and thereafter must

refrain from any further interrogation until counsel is

present. Id. This Court has recognized the coercive

nature of custodial interrogation and reasoned that by

requesting the assistance of counsel an individual

“expresses his own view that he is not competent to deal

with the authorities without legal advice.” Mosley, 423

U.S. 96, 110 n.2 (White, J. concurring).The Davis court

noted that the Edwards rule created a “second layer of

*For an excellent analysis and a proposal to satisfy the

differing procedural safeguards between the right to counsel

and the right to silence, see, Ambiguous Invocations of the

Right to Remain Silent: A Post-Davis Analysis and Proposal,

Wayne D. Holly, 29 Seton Hall L. Rev. 558 (1998).

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prophylaxis for the Miranda right to counsel” to prevent

police from badgering a defendant into waiving

previously asserted Miranda rights. Davis, 512 U.S. at

458, quoting McNeil v. Wisconsin, 501 U.S. 171, 176,

111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991) and

Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176,

1180, 108 L.Ed.2d 293 (1990).

The Davis court considered whether an

ambiguous reference to counsel was enough to trigger

the right to counsel, and thus the application of the

Edwards rule. The Davis court was particularly

concerned that even an ambiguous or equivocal

reference to counsel could severely hamper law

enforcement’s legitimate need to investigate if the

Edwards rule requiring the cessation of questioning was

triggered — even if the suspect did not actually desire

counsel’s presence. Davis, 512 U.S. at 460. Extending

the Edwards rule to those situations would impose

“irrational obstacles to legitimate police investigative

activity” because, under Edwards, police could not

thereafter question the suspect even if the suspect

really did not wish counsel to be present. Id. Therefore,

because legitimate police investigation may be thwarted

by an equivocal or ambiguous invocation of the right to

counsel, it is entirely reasonable to impose an

affirmative duty on a suspect to unambiguously assert

that right.

However, there is good reason to allow a more

flexible rule in determining whether a suspect has

invoked the right to silence. First, a suspect’s invocation

of the right to silence has a much less drastic effect on

police investigation. Unlike the Edwards rule, when a

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suspect who once waived his Miranda rights later

chooses to invoke his right to silence and cut-off

questioning, the police are not precluded under Mosley

from trying to question him again later, as long as they

“scrupulously honor” the request to stop questioning

when made. Mosley, 423 U.S. 96, 103-04. Thus the

Mosley rule provides only a temporary hindrance to

further police investigation, in part, because an

individual’s invocation of the right to silence raises no

presumption that he is unable to deal with the police on

his own without an attorney. Id. at 110, n.2 (White, J.,

concurring); Arizona v. Roberson, 486 U.S. 675, 683,

108 S.Ct. 2093, 2099, 100 L.Ed.2d 704, 714 (1988).

This difference, then, in both the effect of the

invocation of the right to silence on police investigation

and in the presumption about a suspect’s ability to

competently handle police interrogation on his own,

justifies a different standard for the right to silence

than the right to counsel. A lesser degree of certainty

should be enough for one to invoke the right to silence.

There is presentiy a _ split among those

jurisdictions that have considered whether to apply the

same Davis “clear articulation rule” to the right to

silence. While a number of jurisdictions, like Wisconsin,

have applied the Davis rule ‘o the right to silence,

others have declined, and still others have expressly

considered the question, yet, recognizing that this Court

has not yet spoken on the issue, have chosen not to

decide whether to apply Davis to the right to silence.

This creates an intolerable lack of uniformity in the

state and federal courts about a constitutional right

that is affected daily in police interrogations throughout

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the country. Such divergent results which depend on

the geographic location of the prosecution should not be

tolerated when important constitutional rights like the

Fifth Amendment right to silence are affected.

To date, four federal circuits have either rused

directly that Davis applies to the invocation of the nght

to silence, or used similar language requiring the

invocation to be unambiguous to be properly invoked.

See United States v. Nelson, 450 F.3d 1201, 1211-12

(10th Cir. 2006) (applying objective Davis inquiry to

determine whether defendant invoked right to remain

silent); United States v. Hurst, 228 F.3d 751, 760 (6th

Cir. 2000) (asking whether defendant made a “clear and

unequivocal assertion of his right to remain silent,” but

not expressly ruling Davis applies); Simmons _v.

Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001) (asking

whether defendant made unequivocal or unambiguous

assertion of right to remain silent, but not directly

answering whether Davis applies); Medina ev.

Singletary, 59 F.3d 1095, 1101, n.2 (11th Cir. 2004)

(acknowledging that Davis did not address right to

silence, but observing “parallels” in the law for both the

right to counsel and the right to silence).

On the other hand, five federal circuits have

declined to address the issue, and instead either

expressly or implicitly left open the premise that the

invocation of the right to silence should be treated

differently than the right to counsel. See United States

v. Rodriguez, 518 F.3d 1072, 1078, n.5 (9th Cir. 2008)

(declining to decide whether Davis applies to right to

silence and noting four other cases from 9th Circuit also

declined to decide); James v. Marshall, 322 F.3d 103,

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108 (1st Cir. 2003) (holding open question of whether

Davis applies to right to remain silent); United States

v. Ramirez, 79 F.3d 298, 305 (2d Cir. 1996) (assuming

Davis applies to right to remain silent, but not holding

for certain that it does); Burket v. Angelone, 208 F.3d

172, 200 (4th Cir. 2000) (declining to address whether

Davis applies to right to remain silent); Soffar v.

Cockrell, 300 F.3d 588, 594 n.5 (5th Cir. 2002) (same);

Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.

1996) (same).

Similarly, the states are split on whether the

Davis “clear articulation rule” applies to the right to

silence.

Several state courts have either rejected the

application of Davis to the right to silence, or applied

different state law. See State v. Strayhand, 911 P.2d

577, 592 (Ariz. 1995) (Davis does not extend to right to

silence context); State v. Hoey, 881 P.2d 504, 524 (Haw.

1994) and State v. Rogan, 984 P.2d 1321, 1249 (Haw.

1999) (both rejected Davis and accorded broader rights

under state constitution); State v. Farley, 452 S.E.2d

50, 59, n.12 (W. Va. 1994) (declining to adopt Davis);

State v. Chew, 695 A.2d 1301, 1318 (N.J. 1997) (same);

State v. Jones, 6 P.3d 58, 61-62 (Wash. 2000) (rejecting

Davis rule); See also, State v. Pena, 98 P.3d 857, 866-68

(Wyo. 2004) (discussing policy reasons why clear

articulation should not be necessary in right to silence

context, but reserving “definitive determination” for

another day).

Other states, like Wisconsin, have extended

Davis to the right to silence. See Bowen v. State, 911

S.W.2d 555, 565 (Ark. 1995) (applying federal law), cert.

denied, 517 U.S. 1226 (1996); State v. Owen, 696 So. 2d

715, 718-19 (Fla. 1997) (applying state law); State v.

Williams, 535 N.W.2d 277, 284-85 & n.3 (Minn. 1995)

(applying prior state case law); People v. Cohen, 226

A.D.2d 903, 904 (N.Y. App. Div. 1996); Dowthitt v.

State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996);

State v. Levya, 951 P.2d 738, 743 (Utah 1997) (Davis

applicable only after waiver; but not specifically

addressing if applicable to postwaiver ambiguous

indications of right to silence); State v. Bacon, 658 A.2d

54, 65 (Vt. 1995) (applying federal law), cert. denied,

516 U.S. 837 (1995); Midkiff v. Commonwealth, 462

S.E.2d 112, 116 (Va. 1995) (relying on state case law).

Given such disparate treatment of a bedrock

constitutional right like the Fifth Amendment’s right to

silence, this Court should accept review and decide

whether to apply the same Davis “clear articulation

rule” to the right to silence or whether a lesser degree

of certainty will suffice to invoke the right to silence and

to cut-off police questioning.

In addition to the disparate enforcement of the

right to silence under presently developing law, those

court decisions which have extended the Davis rule to

a suspect’s exercise of the right to cut-off police

questioning are in conflict with this Court’s

pronouncement in Mosley, that “[ilf the individual

indicates in any manner, at any time prior or during

questioning, that he wishes to remain silent, the

interrogation must cease.” 423 U.S. at 104 (emphasis

added). Under that long standing rule, no

“unambiguous” statement of the suspect seems

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necessary to sufficiently invoke the right to silence and

cause the police to stop questioning.

Yet, those jurisdictions which have extended the

Davis rule to the right to cut-off police questioning have

failed to heed Mosley, and in the process the right to

silence and to cut-off police questioning has been

dramatically diminished. That diminution is amply

demonstrated in this case, where the court of appeals

ruled that Stephens “did not make a clear articulation

that he wanted to terminate the interrogation,” APP 6,

even though it was undisputed that he said: “I don’t

want to talk to you, punk.” The court of appeals

transformed even such a plain and direct declaration as

this into an ambiguous statement.

Another recent case in Wisconsin provides

further evidence of how the application of the Davis rule

to the right to silence has lead to the decay of that right.

In State v. Markwardt, 2007 WI App 242, 4 36, 306

Wis. 2d 420, 742 N.W.2d 546, the Wisconsin court of

appeals went so far as to rule that a suspect will be held

to have insufficiently invoked the right to silence “if any

reasonable competing inference can be drawn.

Accordingly, an assertion that permits reasonable

competing inferences demonstrates that a suspect did

not sufficiently invoke the right to remain silent.” Such

pronouncements are simply irreconcilable with Mosley’s

rule that a suspect can invoke the right to silence “in

any manner.” Such a rule turns on its head this Court’s

usual presumption against the implicit waiver of

constitutional rights. See Brewer v. Williams, 430 U.S.

387, 404, 97 S.Ct. 1232, 51 L.Ed.2d. 424 (1977) (“courts

indulge in every reasonable presumption against

waiver” of important constitutional rights).

A better way to determine whether an individual

has sufficiently invoked the right to silence and right to

cut-off custodial police questioning can ke derived from

the plain language of Miranda and Mosley.

The Miranda court described in detail the

“jnherent pressures of the interrogation atmosphere,”

which can tend to overwhelm an individual’s free will.

384 U.S. at 448-68. To protect against that coercive

atmosphere, the court adopted the Miranda warnings as

a means to “notify the person of his right of silence and

to assure that the right will be scrupulously honored.”

Id. at 479. The Mosley court identified as the “critical

safeguard” an individual’s right to cut-off questioning.

Mosley, 423 U.S.96, 103. “The requirem nt that law

enforcement authorities must respect a person's

exercise of that option counteracts the coercive

pressures of the custodial setting.” Id. Therefore, to

ensure “that the resulting statement is the reliable

product of free will,” the court ruled that “if the

individual indicates in any manner .. . that he wishes

to remain silent, the interrogation must cease.” Id. at

100 (emphasis added), citing Miranda, 384 U.S. at 473.

The use of the phrase “indicates in any manner”

surely contemplates a more flexible standard for the

invocation of the right to silence than that employed in

Davis. Thus, this Court should accept review in this

case and rule that a broader standard applies to the

right to silence whereby a suspect need only indicate, in

any manner, a desire that could reasonably be

interpreted by the police as intended to stop the

questioning. This imposes a duty on the individual to

assert the right by some words or conduct, but does not

require a burden so inflexible that it conflicts with the

language of Miranda and Mosley that the right may be

invoked “in any manner.” The objective standard of

reasonableness in such a standard still provides a

bright enough line for law enforcement, without

demanding of the suspect a linguistic burden worthy of

“an Oxford don.” Davis, 512 U.S. at 4549.

Accordingly, for all of these reasons, this Court

should grant the petition for a writ of certiorari to

resolve this split in the state and federal courts of this

country and to decide whether the same degree of

certainty is required to exercise the right to cut-off

police questioning as this Court required for the

invocation of the right to counsel.

Il. Thi urt should grant certiorari and rule that

even if the “clear articulation rule” applies to

the right to silence, an individual who directly

and plainly tells a detective “I don’t want to talk

to you anymore,” has sufficiently invoked his

constitutional right to cut-off questioning so

that further questioning must cease.

Even if this Court believes the Davis rule should

apply equally to the invocation of the right to silence,

the declaration made by the Petitioner in this case

should be held to demonstrate an unambiguous

assertion of that right.

At the police station, Stephens initially agreed to

speak and answered a number of questions. However,

the invocation of his right to silence could not have been

made clearer when, in the presence of both officers, he

slammed his fist on the table and said, according to the

detective, that he “was not going to talk to me anymore

and referred to me as a punk.” R.43:43,73.

Other courts interpreting similar language have

found it to be sufficiently unequivocal to invoke a

defendant’s constitutional rights. See, State v. Goetsch,

186 Wis.2d 1, 7-8, 519 N.W.2d 634 (Ct. App. 1994) (“I

don't want to talk about this anymore” was sufficient to

invoke right to silence); State v. Dagnall, 2000 WI 82, 4

18, 236 Wis. 2d 339, 351 (trial court suggested the

phrase, “I don’t want to talk to you guys” as an example

of an “express statement” which would capably assert

right); State v. Hannan, 636 N.W.2d 796, 801-02 (Minn.

2001) (“I don’t want to talk anymore please” constituted

invocation of right to silence); State v. Strayhand, 184

Ariz. 572, 590-91, 911 P.2d 577, 584-85 (Ariz. App.

1995) (court held that “[dlefendant’s first

invocation, ‘well I don’t want [to] answer anymore’ could

not have been clearer”); State v. Belcher, 520 So.2d 303,

304, ( Fla. App.3 Dist., 1988) (“I don’t want to talk to

you anymore” was valid invocation); Stinett v. State,720

S.W.2d 663, 668 (Tex. App. 1986) (“I don’t want to talk

anymore” expressed “clear desire to cut off

questioning”); State v. Bishop, 621 P.2d 1196, 1198 (Or.

App. 1980) (“I don’t want to talk about it” was clear

invocation of rights); Law v. State, 318 A.2d 859 (Md.

App. 1974) (“I don’t want to talk anymore “ was proper

invocation of rights); People v. Rose, 75 Ill. App.3d 45,

53-54, 393 N.W.2d 698, 705 (1979) (“I don’t want to talk

to you anymore” held to invoke right to remain silent).

ail ope

When a suspect made a similar statement, “I

don’t want to talk no more,” the Seventh Circuit Court

of Appeals warned that law enforcement must “stop the

questioning....The subject of the inquiry has a

constitutional right not to talk; the government and its

agents have a constitutional duty to respect that right.”

Davis v. Greer, 13 F. 3d 1134, 1138 (7th Cir. 1994).

In this case, not only did the detective fail to

respect Stephens’ right to terminate questioning, his

followup questions did not “clarify” the defendant’s

intent. Rather, they confused matters by conflating his

right to counsel with his independent right to cut off

questioning at any point he desired. The detective’s

query whether he “was invoking his right to have

representation or if he would still speak to us,” R. 43:

43-44, served as a diversion by blurring the two rights.

The right to remain silent is separate and distinct from

the right te counsel, which the detective’s questions

failed to recognize. See State v. Strayhand, supra, 184

Ariz. at 591, 911 P.2d at 585.

The court of appeals in this case interpreted the

Stephens’ comment: “I’m not going to talk to you

anymore,” as only a refusal to talk further to one

specific officer, i.e., the detective who aggressively

confronted him. In reaching that conclusion, the court

ignored testimony by the other officer present when the

statement was made. He described Stephens’ invocation

of his right to remain silent more broadly: “he said he

didn’t want to, I believe talk at this time.” R.43: 27

(emphasis added). That officer’s version of the exchange

does not support the court of appeals’ conclusion that

Stephens’ refusal to talk only applied to the detective.

The trial court judge never resolved this

discrepancy between the two officers’ versions, and

expressly found both officers credible. R.43: 100. The

court of appeals simply ignored the trial court’s finding

and ruled that “implicitly the court found the officers’

testimony to be more credible” than the defendant’s.

APP. 5, J 9, n. 1. Yet there was no dispute between the

defendant’s testimony and the officers as to whom he

directed his statement. On the contrary, the trial court

found that Stephens’ statement was made in the

presence of both officers. R.43: 104.

Moreover, the detective did not seem at all

unclear about whether Stephens was only refusing to

speak with him in particular. He did not testify that he

was trying to discern whether Stephens would be

willing to talk with another officer. Although he tried to

justify continued questioning on the grounds that

Stephens’ statement and desire was ambiguous, he

admitted that he would have continued to ask questions

seeking to “clarify” even if the defendant had

unambiguously said “I don’t want to talk anymore,”

without adding “to you.” R. 43: 62. This suggests that

the detective’s true intent was not to “clarify” anything,

but rather to get Stephens to keep talking even after he

asserted his right to remain silent. This he cannot do.

The court of appeals failed to heed both Mosley’s

warning that interrogation must cease if the suspect

“indicates in any manner” that he wishes to remain

silent, 423 U.S. at 100, and this Court’s pronouncement

in Davis that the suspect need not “speak with the

discrimination of an Oxford don.” 512 U.S. at 459. It

would impose an unconstitutional level of precision to

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expect a suspect in an inherently coercive situation to

meet the standard the court of appeals applied in order

to assert his constitutional rights. Stephens’ declaration

was sufficiently clear that a reasonable officer would

understand he was invoking his right to remain silent.

CONCLUSION

For all of these reasons, ttis Court should grant

certiorari and hold that the “clear articulation rule” of

Davis does not apply to the Fifth Amendment right to

remain silent. Even if the Davis rule applies to the right

to silence, this Court should rule that the Petitioner’s

statement to the police satisfied that standard and thus

all police questioning should have ceased immediately.

Dated this 23rd day of October, 2008.

Respectfully Submitted,

BUTING & WILLIAMS, S.C.

Jerome F. Buting

Counsel of Record

Kathleen B. Stilling

Address:

400 N. Executive Dr., #205

Brookfield, WI 53005

(262) 821-0999 Fax: (262) 821-5599

Attorneys for Petitioner

No. 08-

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

MARK A. STEPHENS,

Petitioner

Vv.

STATE OF WISCONSIN,

Respondent.

On Petition for a Writ of Certiorari

to the Wisconsin Court of Appeals

APPENDIX

Jerome F. Buting

Counsel of Record

Kathleen B. Stilling

BUTING & WILLIAMS, S.C.

400 N. Executive Drive

Suite 205

Brookfield, WI 53005

262-821-0999

262-821-5599 (fax)

Attorneys for Petitioner

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2% c “ rs

APP |

No. 2006AP2809-CR

(L.C. No. 2002CF886)

STATE OF WISCONSIN: IN COURT OF APPEALS

DISTRICT II

State of Wisconsin,

Plaintiff-Respondent,

FILED

Vv.

APRIL 23,2008

Mark A. Stephens,

Defendant-Appellant.

APPEAL from a judgment and an order of the

circuit court for Waukesha County: Donald T. Hassin

and J. Mac Davis, Judges. Affirmed.

Before Brown, C.J., Snyder and Neubauer, JJ.

41 PER CURIAM. Mark Stephens appeals from

a judgment of conviction of armed burglary and from an

order denying his postconviction motion alleging a

breach of the plea agreement and ineffective assistance

of counsel. He argues that his custodial statement to

police should have been suppressed because he invoked

his right to terminate the interrogation and that the

plea agreement was breached when the prosecutor

made reference to the presentence investigation reports

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APP 2

(PSI) recommendation that the sentence be made

consecutive to another sentence Stephens was then

serving. We affirm the circuit court’s rulings and the

judgment and order.

4/2 Stephens entered his neighbor’s home under

false pretenses and scuffled with the female homeowner

when she caught him looking for money. Stephens

pulled a knife during the scuffle and struck the victim.

Stephens fled the house and was discovered by police

hiding under a camper in his mother’s yard.

4/3 Stephens was transported to the police station

and had one hand cuffed to the table in the

interrogation room when Officer Robert Kraemer read

Stephens his Miranda rights. Stephens acknowledged

understanding each of his rights and agreed to answer

questions. He denied any wrongdoing and told Officer

Kraemer he had been at home all day. Detective David

Funkhouser entered the room and took over the

interrogation. Detective Funkhouser employed a more

aggressive approach and confronted Stephens with

indicators of Stephens’ guilt. Stephens slammed his

hand on the table and declared he did not want to talk

to Detective Funkhouser anymore and referred to the

detective as a “punk.” Detective Funkhouser twice

asked Stephens if he was invoking his constitutional

right to representation or cease questioning. Stephens

indicated that he would continue to speak but was not

happy about having to talk to Detective Funkhouser.

Thereafter Stephens was confronted with the discovery

of the knife in his car. Stephens then admitted his

criminal conduct to Detective Funkhouser. The police

wrote a statement in question and answer form and

APP 3

Stephens signed it.

444 Stephens moved to suppress his oral and

written admissions. The motion was denied. Stephens

then entered a guilty plea to the armed burglary charge.

The plea agreement called for charges of kidnaping and

substantial battery while armed to be dismissed and

read in at sentencing. The prosecution agreed to argue

for substantial prison time but take no position on

whether the sentence should be consecutive or

concurrent to a previous sentence.

45 In a revised sentencing recommendation, the

PSI recommended that the sentence be made

consecutive. At sentencing, the prosecution pointed out

that its recommendation was for substantial prison

time. It noted that Stephens was serving time after the

revocation of parole until October 30, 2009, and “[t]hat’s

the sentence to which the presentence writer indicates

their recommendation should be consecutive.” The

prosecution emphasized the need to give the victim a

sense of security by imposing a substantial prison term.

The prosecution then explained how it had alerted the

PSI author to a mistake in the maximum available and

that the maximum is sixty years. The prosecution

commented next:

If the Court were to adopt the recommendation of

the presentence and make this a period of initial

confinement of 20 years consecutive to what he’s

currently serving, he would be released in the year

2029; and he would be 67 years old. He’s currently 44,

would be 47 when the sentence in 2006 ends.

46 A motion for postconviction relief alleged that

APP 4

the prosecution had breached the plea agreement by not

stating that it took no position on the imposition of a

consecutive or concurrent sentence and by comments

that essentially adopted the PSI recommendation that

the sentence be consecutive. Because no objection was

made to the prosecution’s sentencing argument, the

postconviction motion alleged trial counsel was

ineffective for not objecting. The motion was heard by a

judge different than the sentencing judge. The court

heard an offer of proof that trial counsel would testify

that he had no strategic reason for failing to object to

comments allegedly breaching the plea agreement; trial

counsel did not testify. The court found that the

prosecution’s first reference to the consecutive

recommendation in the PSI was a point of clarification

on the sentencing court’s invitation to explain why

there was a revised PSI recommendation. It concluded

there was not a substantial and material breach of the

plea agreement. Stephens appeals.

77 When reviewing a decision on a motion to

suppress statements we sustain the trial court’s

historical findings of fact unless they are clearly

erroneous. vee State v. Ross, 203 Wis. 2d 66, 79, 552

N.W.2d 428 (Ct. App. 1996). Whether the defendant’s

constitutional rights were violated is a “constitutional

fact” determined without deference to the trial court. Id.

18 A defendant’s Fifth Amendment right to remain

silent includes the right to cut off an interrogation and

must be “scrupulously honored.” Michigan v. Mosley,

423 U.S. 96, 104 (1975); Ross, 203 Wis. 2d at 74. The

defendant must unambiguously terminate the

interrogation. Ross, 203 Wis. 2d at 74-75. “A suspect

APP 5

must, by either an oral or written assertion or non-

verbal conduct that is intended by the suspect as an

assertion and is reasonably perceived by the police as

such, inform the police that he or she wishes to remain

silent. “Id. at 78. The articulation must be sufficiently

clear “that a reasonable police officer in the

circumstances would understand the statement to be’

an invocation of the right to remain silent.” Id. (citation

omitted). It is not necessary for the interrogation to

cease if the suspect does not unambiguously invoke his

or her right to remain silent. Id. Of greater importance

here is the recognition that given an equivocal or

ambiguous request to remain silent, the police need not

ask the suspect clarifying questions on that request but

that it is good police practice to do so. Id.

99 In the wake of Stephens’s assertion that he

did not want to talk “to you, punk,” Detective

Funkhouser sought to clarify whether Stephens was

invoking his constitutional right to remain silent. The

clarifying questions were not unreasonable because

Stephens directed his words to the detective as

demonstrated by calling the detective a punk.’ The

declaration that a suspect does not wish to speak to a

specific officer is not the invocation of his right to

remain silent. See State v. Owen, 202 Wis. 2d 620, 641,

551 N.W.2d 50 (Ct. App. 1996). Stephens did not make

*We recognize, as Stephens points out in his reply brief,

that the trial court did not make a finding on the exact

language Stephens used. Implicitly the court found the

officers’ testimony to be more credible. It was undisputed that

Stephens called Detective Funkhouser a punk when indicating

he didn’t want to speak.

APP 6

a clear articulation that he wanted to terminate the

interrogation and the detective was not required to

immediately walk away.‘ In asking two separate

clarifying questions whether Stephens was invoking his

right to representation and whether Stephens was

invoking his right to remain _ silent—Detective

Funkhouser was doing good police work in an attempt

to determine whether Stephens was invoking a right.

Nothing suggests that the clarifying questions

themselves were coercive or threatening. Stephens had

been fully advised of his Miranda rights and when

asked to clarify if he wanted to terminate the

interrogation, he indicated he did not. His

constitutional right to remain silent was not violated.

410 An actionable breach of the plea agreement

must be a material and substantial breach such that it

“defeats the benefit for which the accused bargained.”

State v. Williams, 2002 WI 1, 438, 249 Wis. 2d 492, 637

N.W.2d 733. Whether the prosecution has breached the

plea agreement in a material and substantial way is a

question of law that we review independent of the trial

court. Id., 20. When the issue is presented to this court

under an ineffective assistance of counsel claim because

counsel failed to object to the alleged breach of the plea

agreement, we first determine whether there was, in

fact, a material and substantial breach of the plea

agreement. State v. Sprang, 2004 WI App 121, 413, 274

“Because Stephens did not invoke his right to remain

silent, we need not consider the five factor test set forth in

State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866 (1985),

for determining whether police scrupulously honored the

invocation.

APP 7

Wis. 2d 784, 683 N.W.2d 522.

While a prosecutor need not’ enthusiastically

recommend a plea agreement, the court of appeals has

stated that he or she “may not render less than a

neutral recitation of the terms of the plea agreement.”

“End runs” around a plea agreement are. prohibited.

“The State may not accomplish by indirect means what

it promised not to do directly, and it may not covertly

convey to the trial court that a more severe sentence is

warranted than that recommended.” Williams, 249 Wis.

2d 492, 942 (footnotes omitted).

411 Stephens argues that the plea agreement

was breached because the prosecution did not restate

the entire agreement in its initial sentencing argument.

Stephens cites no support for his proposition that it was

the prosecutor’s obligation to fully restate the

agreement at the time of sentencing. We are not

persuaded that the prosecution was required to restate

the plea agreement restrictions. As the postconviction

court aptly noted, the prosecution did not agree to

restate the entire plea agreement at sentencing or

explicitly inform the sentencing court that it had no

position on whether the sentence be concurrent or

consecutive. Although the prosecution made reference

to the plea agreement in first stating its

recommendation for substantial prison time, it did not

in fact make any recommendation on whether the

sentence be concurrent or consecutive.” It was not, as

*The prosecution stated: My recommendation, as the

Court’s aware, was represented at the time of the plea, is that

(continued...)

APP 8

Stephens suggests, a misrepresentation by omission to

not highlight the prosecution’s promise not to make a

recommendation on whether the sentence be concurrent

or consecutive. The reference to the PSI’s

recommendation of a consecutive sentence immediately

after stating the recommendation for substantial prison

was simply an explanation of the PSI.

4/12 We reject Stephens’s suggestion that the plea

agreement was breached by the emphasis the

prosecution gave to the victim’s statement. The victim

indicated to the sentencing court her fear that

Stephens, if released in the next forty years, would

return to harm her and her family. The prosecution

referred to her remarks at the start of its sentencing

argument.® The sentencing court is permitted to

consider the comments and wishes of the victim. State

v. Johnson, 158 Wis. 2d 458, 465, 463 N.W.2d 352 (Ct.

App. 1990). The prosecution’s discussion of how the

crime impacts the victim is relevant to the nature of the

(...continued)

you impose a substantial prison sentence. Mr. Stephens is

currently, Judge, serving time, after having been revoked from

parole, until October 30th, I believe, of 2009. That’s the

sentence to which the presentence writer indicates their

recommendation should be consecutive.

*The prosecution stated: [T]his sentencing should not

be about Mr. Stephens. It should be about the victim, Judge.

Your sentence here today perhaps can give back some sense of

safety. It will never totally come back for this victim, Judge.

It’s gone. Mr. Stephens has destroyed that, as she indicated.

But this Court can perhaps give her some small feeling of

safety in her home again.

APP 9

crime. State v. Naydihor, 2004 WI 43, 927, 270 Wis. 2d

585, 678 N.W.2d 220. It also bears on the need to

protect the public. The prosecution’s comments on the

victim’s wishes supported the recommendation for

substantial prison. We reject Stephens’s contention that

the prosecution implicitly recommended a consecutive

sentence because, in Stephens’s opinion, the forty-year

sentence the victim wanted could only be accomplished

by a consecutive sentence.’ The prosecution’s emphasis

on the victim’s wishes did not make an end run around

the plea agreement.

413 Stephens argues that the prosecution’s

reference, not once, but twice, to the PSI’s

recommendation of a consecutive sentence breached the

plea agreement by implicitly adopting the PSI

recommendation. As we have already stated, the first

reference to the PSI consecutive recommendation was

to explain the PSI. The PSI did not indicate what the

sentence should be made consecutive to. Moreover, that

reference was followed by a discussion of discrepancies

in the PSI of Stephens’s prior record. It was part of a

larger discussion of the sentences previously imposed on

Stephens to help the court understand the errors in the :

PSI on Stephens’s prior record.

4/14 The second reference to the PSI’s consecutive

recommendation came at the conclusion of the

prosecution’s argument. The reference to Stephens’s age

at the completion of the PSI recommended sentence was

factual only and didn’t suggest that one age was better

"Stephens faced a maximum prison term of sixty years

with the possibility of forty years’ initial confinement.

APP 10

than the other. Age is an appropriate sentencing

consideration so it was not inappropriate for the

prosecution to provide that information. “A prosecutor

may convey information to the sentencing court that is

both favorable and unfavorable to an accused, so long as

the State abides by the plea agreement.” Williams, 249

Wis. 2d 492, 944. We are not persuaded that the

references to the PSI’s consecutive recommendation was

an implicit adoption of the PSI recommendation or a

breach of the plea agreement.

415 Even if we considered the comment to be an

end run around the prosecution’s promise not to take a

position on whether the sentence should be concurrent

or consecutive, it was not a substantial and material

breach of the agreement. Stephens cites Sprang, 274

Wis. 2d 784, and Williams, 249 Wis. 2d 492, as

illustrative of the circumstances in which the

prosecution’s reference to the PSI constituted a breach

of plea agreements. In both Sprang, 274 Wis. 2d 784,

424, and Williams, 249 Wis. 2d 492, 9948-50, the plea

agreement was undercut by the prosecution’s adoption

of information in the PSI to cast doubt on the wisdom of

the plea agreement. See also State v. Wills, 187 Wis. 2d

529, 538, 523 N.W.2d 569 (Ct. App. 1994), affd., 193

Wis. 2d 273, 533 N.W.2d 165 (1995) (finding a breach

the court concluded that “the prosecutor was required to

argue to the trial court that the agreement was

consistent with the appropriate sentencing criteria. If

the prosecutor could not support the agreement, she

should not have committed the State to it.”).

416 Here, at no point did the prosecution cast

doubt on the plea agreement. This case is closer to

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APP 11

Naydihor, 270 Wis. 2d 585, 49/27, 30, where there was

no breach of the plea agreement because the

prosecution did not imply to the sentencing court that

it believed a more severe sentence than that

recommended was appropriate and the information the

prosecution discussed was relevant to appropriate

sentencing factors. The agreement for “substantial

prison” permitted leeway to the prosecution in how to

justify that recommendation. The prosecution continued

to support the plea agreement by recommending

substantial prison and providing information that

supported substantial prison time. In short, Stephens

was not deprived of the benefit of the agreement not to

have the prosecution make a recommendation on

whether the sentence was to be consecutive or

concurrent. Thus, references to the PSI’s consecutive

recommendation were not substantial or material

breaches. Trial counsel was not constitutionally

deficient for not objecting at sentencing.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See Wis. Stat. Rule

809.23(1)(b)5. (2005-06)

APP 12

OFFICE OF THE CLERK

Supreme Court of Wisconsin

110 EAST MAIN STREET, SUITE 215

P.O. BOX 1688

MADISON, WI 53701-1688

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: www.wicourts.gov

To: July 28, 2008

Hon. J. Mac Davis

Waukesha County Circuit Court Judge

515 W. Moreland Blvd.

Waukesha, WI 53188

Carolyn T. Evenson

Waukesha County Clerk of Circuit Court

515 W. Moreland Blvd.

Waukesha, WI 53188

Jerome F. Buting

Buting & Williams, S.C.

400 N. Executive Dr., #205

Brookfield, WI 53005-6029

Brad Schimel

District Attorney

515 W. Moreland Blvd.

Waukesha, WI 53188-0527

Maura F.J. Whelan

Asst. Attorney General

P.O. Box 7857

Madison, WI 53707-7857

You are hereby notified that the Court has entered the

following order:

No. 2006AP2809-CR State v. Stephens

L.C.#2002CF886

A petition for review pursuant to Wis. Stat. §

808.10 having been filed on behalf of defendant-

appellant-petitioner, Mark A. Stephens, and considered

by this court;

IT IS ORDERED that the petition for review is

denied, without costs. )

David R. Schanker

Clerk of Supreme Court

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