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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

, 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
NE oh ies op ink oboe wee a Wa
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

iv

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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.

1

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

4

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

5

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

7

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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

12

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

14

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

15

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,

16

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).

17

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.

18

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

19

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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

20

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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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.

a

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.

a

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0342%3A1. Public record. Not legal advice.