Waiver requires knowledge of charges

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"At the onset of post-charge pretrial police interrogations, the accused must be made aware that the adversarial process has begun and that he or she can request the assistance of counsel at the onset of post-charge pretrial police interrogations." Judge Richard S. Brown Wisconsin Court of Appeals

Where police initiated a conversation with a suspect, against whom a complaint and arrest warrant had been issued, without informing him of that, or giving him Miranda warnings, the statements must be suppressed, the Wisconsin Court of Appeals held on Oct. 9.

Deception

On July 26, 2000, the State issued an arrest warrant for Christopher D. Anson, and filed a complaint, charging him with three counts of sexual contact with a child under the age of 16.

In early August, a local police officer contacted the Orange County California sheriff to ask for assistance in getting a statement from Anson. He later sent an eight-page narrative, a copy of the criminal complaint, and photos of Anson and the victim.

On Aug. 8, two investigators in California went to Anson’s workplace, both to get a statement from him, and ultimately to arrest him. Anson agreed to speak with the investigators.

At the beginning of the interrogation, Anson asked, “I haven’t been charged with anything yet?” and the investigator responded, “Right.” The investigator then asked, “You understand you are not under arrest right now?” and Anson responded affirmatively.

Concerning count three of the complaint, Anson said that the victim took his hand and placed it over her clothes on her vagina and he left his hand there for a period of time. Anson denied that anything occurred concerning counts one and two. After the interview, the investigators placed Anson under arrest.

Anson moved to suppress the statements he made to the investigators on Sixth Amendment grounds, but Walworth County Circuit Court Judge James L. Carlson denied the motion. At trial, the statements were introduced through the testimony of one of the investigators.

Anson also took the stand at trial and testified consistent with what he told the investigators. The jury convicted Anson on count three, but found him not guilty of counts one and two.

Anson appealed the denial of his suppression motion, and the court of appeals reversed in a decision by Judge Richard S. Brown.

The Fifth and Sixth Amendments

The court began by setting forth what the Sixth Amendment right to counsel guarantees, noting that it is implicated when the State initiates the adversarial process, because, “It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law,” quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972).

The court acknowledged that, although the right to counsel attaches at the time a charge is made, it is not self-executing, and a defendant who does not have counsel must invoke, assert or exercise the right to counsel to prevent interrogation. Invocation of the right prohibits the State from initiating any contact or interrogation.

The court then noted the difference between the law governing the Sixth Amendment right to counsel and the Fifth Amendment right to counsel, which attaches upon arrest. While a suspect invoking the Fifth Amendment right to counsel must do so unambiguously, pursuant to Davis v. United States, 512 U.S. 452 (1994), the Supreme Court has held that the Sixth Amendment right to counsel must be interpreted broadly. Michigan v. Jackson, 475 U.S. 625 (1986).

No Waiver

The court determined, however, that it need not address the stringency of the requirements for an invocation of the Sixth Amendment right to counsel, because it concluded Anson did not knowingly waive the right, under any interpretation.

The court noted that, in State v. Dagnall, 2000 WI 82, par. 52, 236 Wis.2d 339, 612 N.W.2d 680, the Wisconsin Supreme Court held that the requirement on defendants that they invoke the right to counsel is contingent on the defendant “ha[ving] been fully alerted to the right to have an attorney and the right not to answer questions,” and that, “This normally would entail Miranda warnings.”

The court then discussed the case of Patterson v. Illinois, 487 U.S. 285 (1988). There, the court said that a waiver of Miranda rights satisfied the requirements for a valid waiver of either the Fifth or Sixth Amendment right to counsel.

However, because the defendant knew he had already been charged, the court in Patterson declined to decide whether defendants who have already been charged must be informed of that, for a waiver to be valid.

The appeals court noted, however, that numerous courts in other jurisdictions have considered that issue, however, and the decisions shared several characteristics: “In each of these cases in which the court affirmed a waiver of the defendant’s Sixth Amendment right to counsel, the defendants had been read the Miranda warnings and had been aware that they were in custody, under arrest, or that charges had been filed. By virtue of the Miranda warnings, these defendants understood their right to counsel and the consequences of abandoning their right. Even if they did not know they had been formally charged with a crime, these defendants had sufficient information so that they could comprehend the gravity of their situation and the nature of their Sixth Amendment right to counsel.”

From Dagnall and the cases from other jurisdictions, the court distilled the following conclusion: “At the onset of post-charge pretrial police interrogations, the accused must be made aware that the adversarial process has begun and that he or she can request the assistance of counsel at the onset of post-charge pretrial police interrogations. This can be accomplished by informing the accused that he or she has been formally charged with a crime, by reading to the accused the Miranda warnings, or by anything else that would inform the accused that the adversarial process has begun.”

By giving Miranda warnings, the court concluded, the defendant is told that he has the right to an attorney and any statement he or she makes can be used in subsequent criminal proceedings. Or, by informing him that a complaint has been filed or an arrest warrant issued, a reasonable person “would comprehend that the government has committed itself to prosecute and the positions of the adversaries have solidified.”

Thus, the court held, “Any voluntary, uncounseled statements made after such knowledge or after a Miranda warning can constitute a valid waiver of the Sixth Amendment right to counsel.”

In Anson’s case, however, he was neither given Miranda warnings, nor informed that charges had been filed. Instead, the officers misled him into believing they had not been filed.

Rejecting the State’s argument that, because the setting in which he made the statement was noncustodial, Anson did not need to be informed of the right to counsel.

The court noted that the U.S. Supreme Court has explicitly declined to read a custody requirement into the Sixth Amendment right to counsel. Accord-ingly, the court held that the interrogation violated Anson’s rights.

Remand

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Finally, the court considered whether Anson’s decision to testify consistent with the statement rendered the error harmless, and held that the case must be remanded for that determination.

Given the paucity of evidence in the case, coupled with the fact that the jury acquitted Anson of the two charges about which he did not make inculpatory statements, the court could not conclude that a rational jury would have found him guilty, even absent the error.

In addition, in Harrison v. United States, 392 U.S. 219 (1968), the U.S. Supreme Court held that, when a defendant takes the stand in order to overcome the impact of illegally obtained and used statements, his testimony is tainted by the same illegality that rendered the statements themselves inadmissible. Harrison further holds that it should be inferred that the defendant would not have testified, absent the admission of illegally obtained statements.

Accordingly, the court held on remand that the State must bear the burden of proving that he would have testified even absent the error.

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David Ziemer can be reached by email.