02-0147 State v. Fischer

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This is so because defendant’s request was conditional as it depended on something that had not yet happened but might happen in the future.

“A conditional and futuristic request for counsel is a statement that a reasonable officer in light of the circumstances would have understood only that Fischer might be invoking the right to counsel, … and thus is not a clear and unequivocal request for counsel.”

Further, we reject defendant’s assertion that the detectives’ conversation with him was the functional equivalent of interrogation which required the officers to read him his Miranda rights.

“Here, there is nothing in the record to indicate that the detectives had any specific knowledge of Fischer or of any unusual susceptibility to questioning he might have. The detectives entered the room, identified themselves, and explained to Fischer that they wanted to talk to him regarding the Brookfield burglaries. Fischer indicated he had talked to police all day and was skeptical and distrustful of the detectives. Fischer said he wanted to arrange some sort of deal to consolidate the Brookfield burglaries and the Milwaukee charges. Vento informed Fischer that a deal was not going to happen and that he wanted to talk to him about the Brookfield burglaries.

“Fischer then informed Vento that if the detectives read him his rights, he would not answer any questions and would request an attorney. Vento felt the interview was going to end and as he was preparing to leave, he told Fischer there was sufficient evidence to charge him, specifically Fischer’s shoe print at the scene of one of the burglaries, and ‘it shouldn’t become a surprise to him’ if he were charged in Waukesha county….

“In essence, the entire exchange consisted of Fischer asking Vento about the evidence against him, and Vento merely responding to Fischer’s questions, after which Fischer would implicate himself.

“We conclude that under the unusual circumstances of this case, Vento’s words and conduct in merely responding to Fischer’s questions regarding the evidence against him in the two robberies are not interrogation under the Innis test. We conclude that an objective observer would not, on the sole basis of hearing Vento’s words and observing his conduct, conclude that Vento’s answers to Fischer’s direct questions about the evidence against him would be likely to elicit an incriminating response from Fischer.”

Judgment affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Haughney, J., Snyder, J.

Attorneys:

For Appellant: Mark S. Rosen, Waukesha

For Respondent: Paul E. Bucher, Waukesha; Sally L. Wellman, Madison