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NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
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No. 94-2791-CR
STATE OF WISCONSIN
: IN SUPREME COURT
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State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Brian J. Coerper, Defendant-Respondent-Cross Petitioner. |
FILED FEB 20,
1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
REVIEW
of a decision of the Court of Appeals. Affirmed
in part, reversed in part and cause remanded.
ROLAND B. DAY,
C.J. This is a review of a decision of the court of appeals, State
v. Coerper, 192 Wis. 2d 566, 531 N.W.2d 614 (Ct. App. 1995), affirming
in part and reversing in part an order of the circuit court for Outagamie
County, Dennis Luebke, Judge. The
circuit court had granted a motion of defendant Brian Coerper (Coerper)
suppressing statements Mr. Coerper made to an informant prior to the issuance
of a criminal complaint charging him with first-degree reckless homicide
contrary to Wis. Stat. § 940.02 (1993-94). The court of appeals concluded that statements Coerper made prior
to his incarceration on April 15, 1994, on a separate matter were not obtained
in violation of Coerper's rights and therefore admissible, and reversed the
portion of the circuit court order suppressing those statements; however, the
court of appeals also concluded that statements Coerper made after his
incarceration were obtained in violation of his rights, and the court of
appeals affirmed the portion of the circuit court's order suppressing these
statements. Because we conclude that
there is no evidence that Coerper ever invoked his right to counsel, none of
Coerper's statements were taken in violation of his rights. We thus reverse the portion of the court of
appeals decision suppressing Coerper's statements made after April 15, 1994,
and affirm the portion of the decision reversing the trial court's suppression
order.
During January of 1993,
Coerper was serving a sentence for burglary in the Outagamie County Jail with
Huber work-release privileges pursuant to Wis. Stat. § 303.08 (1993-94).[1] On the evening of January 28, 1993, Coerper
informed the Appleton police that he had gone to visit a friend of his, Cynthia
Jo Boche (Boche), and had discovered her body behind the door of her
apartment. A later autopsy revealed
that Boche had been manually strangled to death.
On February 3, and 4, 1993,
while Coerper was still in jail on the burglary conviction, a public defender,
Eugene Bartman (Bartman), wrote two letters to the Outagamie County district
attorney. The letters stated that
Coerper was represented by the public defender's office. Attorney Bartman noted in the letters that
he understood Coerper to be under investigation for Boche's murder.
Coerper was released from
jail on the burglary charge on March 15, 1993.
On August 18, 1993, Attorney Bartman wrote a letter to an investigator
at the Appleton Police Department, Randall Cook (Cook). The letter stated in part:
I also wish to remind you that
Brian Coerper is represented by counsel.
Brian is not to be questioned by any law enforcement officer, or anyone
acting on behalf of law enforcement, with respect to any matter related to your
investigation into the death of Cynthia Jo Boche. Brian has been instructed to invoke his right to counsel and his
right against self-incrimination to not discuss anything related to the pending
investigation in the absence of his attorney.
Any future contact with Brian should be made through me.
I assume you will take
responsibility for notifying any other law enforcement officer who may be
making contact with Brian in the future that Brian is represented by counsel
and that his right to remain silent and his right to counsel have been
invoked.
On January 3, 1994, Mr. Cook
and another investigator interviewed Jacqueline VandenWyngaard, a former friend
of Coerper's. The investigators asked
Ms. VandenWyngaard to reestablish her friendship with Coerper in order to
gather evidence from Coerper. Ms.
VandenWyngaard agreed to assist the police.
On January 27, 1994, Coerper visited Ms. VandenWyngaard at her home and
spoke with her. Ms. VandenWyngaard
recorded the conversation. On April 15, 1994, Coerper was again jailed
on a theft charge and placed on a probation hold. While in jail, he exchanged letters with Ms. VandenWyngaard. On May 2, 1994, while still in jail, Coerper
was charged with first-degree reckless homicide in the death of Boche. Coerper and Ms. VandenWyngaard continued
their correspondence after the filing of the charge. On appeal, the State has conceded that Ms. VandenWyngaard was an
agent of the police from January 3, 1994 to May 1, 1994.
Coerper moved to suppress all
statements he made to Ms. VandenWyngaard after January 3, 1994. The circuit court granted Coerper's motion
to suppress his statements to Ms. VandenWyngaard. The court of appeals reversed the portion of the circuit court's
order suppressing the statements made before Coerper's incarceration on April
15, 1994, and affirmed the portion of the order suppressing the statements made
after April 15, 1994.
On review of an order
granting suppression, we are bound by the circuit court's findings of
historical fact unless they are contrary to the great weight and clear
preponderance of the evidence. State
v. Kramar, 149 Wis. 2d 767, 784, 440 N.W.2d 317 (1989). Whether the defendant's Miranda[2]
rights were violated is a constitutional fact which this court determines
without deference to lower courts. Kramar,
149 Wis. 2d at 784.
The United States Supreme
Court has identified two sources of the "right to counsel": the Fifth[3]
and Sixth[4]
Amendments to the Constitution. See
McNeil v. Wisconsin, 501 U.S. 171, 175-77 (1991). The Sixth Amendment right to counsel and its
protections are offense specific, and do not attach until the commencement of a
prosecution. Id. at 175; see
also United States v. Gouveia, 467 U.S. 180, 188 (1984); State v.
Hanson, 136 Wis. 2d 195, 210, 401 N.W.2d 771 (1987). The Sixth Amendment right to counsel is thus
not at issue in the instant case, because the parties dispute only those
statements made before May 2, 1994, when Coerper was charged with Boche's
murder.
Coerper argues, however, that
the so-called "Fifth Amendment" or "Miranda-Edwards"
right to counsel bars the use of the statements obtained during the
investigation of Boche's murder. Cases
of the United States Supreme Court have derived a right to counsel from the
Fifth Amendment in order to protect against self-incrimination under the
pressures of custodial interrogation. See
Miranda, 384 U.S. at 467, 471.
Once a suspect invokes the right, the police may not instigate further
interrogation unless the suspect's counsel is present. Id. at 474; Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Minnick
v. Mississippi, 498 U.S. 146, 153 (1990).
The Miranda-Edwards right to counsel, unlike the Sixth Amendment
right, is not offense-specific: once the right is invoked for a particular
offense, the police may not approach the suspect for interrogation regarding
any other offense without counsel present.
McNeil, 501 U.S. at 177 (citing Arizona v. Roberson, 486
U.S. 675 (1988)).
However, the Miranda-Edwards
right to counsel must be invoked in order to effect the Edwards
prohibition against further interrogation by the police. See Edwards, 451 U.S. at
484.
The rule of [Edwards]
applies only when the suspect "ha[s] expressed" his wish for
the particular sort of lawyerly assistance that is the subject of Miranda.
. . . It requires, at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the assistance of an attorney in
dealing with custodial interrogation by the police.
McNeil, 501 U.S. at 178
(emphasis in original) (quoting Edwards, 451 U.S. at 484). The invocation of the right to counsel must
be unambiguous: The suspect "must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney." Davis v. United States, 114
S. Ct. 2350, 2355 (1994).
Further, this court has held
that the Miranda-Edwards right to counsel must be personally invoked by
the subject. In State v. Hanson,
136 Wis. 2d 195, 213, 401 N.W.2d 771 (1987), a suspect, Hanson, had been
injured during the course of a murder and was placed in a hospital room. Hanson's parents contacted an attorney, who
agreed to represent their son. Id.
at 203. The attorney informed police
officers that he represented Hanson; upon being told that Hanson was not
allowed visitors, the attorney provided the police with a written request that
Hanson not be interrogated without the attorney present. Id. at 203-04. Hanson never requested an attorney. The following morning, police investigators
spoke to Hanson. Hanson waived his Miranda
rights and gave a statement to the investigators. Id. at 205-06.
This court held that the
police interrogation did not violate the Miranda-Edwards right to
counsel, as well as the right to counsel under Article I, § 8(1) of the
Wisconsin Constitution.[5] See Hanson, 136 Wis. 2d
at 211-13. The court stated:
Since
the right to counsel and the right to remain silent are given by the
constitution to the defendant, he alone can exercise those rights. Neither his family nor his attorney are
threatened with accusations, nor do they have the defendant's knowledge of the
case, including the defendant's knowledge of his own guilt or innocence, nor
are they subject to the pain of the defendant's possibly guilty
conscience. Therefore, no one but the
accused can make the decision to make a statement to the police or to ask for
the assistance of counsel in making his decision.
Id. at 213. The court also noted that the United States
Supreme Court had reached a similar result in Moran v. Burbine, 475 U.S.
412 (1986). See Hanson,
136 Wis. 2d at 208-11.
This principle, that the Miranda-Edwards
right must be personally invoked, dictates our result in the present case. Our examination of the record shows no
evidence that Coerper ever personally stated a desire for the assistance
of counsel in dealing with custodial interrogation. The only such request came in the August 18, 1993 letter from
Attorney Bartman, but under Hanson the request of an attorney does not
constitute an invocation of a suspect's Miranda-Edwards right to counsel. In his briefs and at oral argument before
this court, Coerper's counsel concedes that the record contains no evidence of
a personal invocation, but asks this court to infer such an invocation from the
fact that Coerper retained Attorney Bartman.
We decline making such an inference in light of the clear requirement,
stated by both this court and by the United States Supreme Court, that an
invocation of the right to counsel by a suspect must be unambiguous. Simply retaining counsel is not an unequivocal
statement that the suspect wishes to deal with the police only in the presence
of counsel.
Because Coerper never
personally invoked the right to counsel, the police were free to conduct the
investigation through Ms. VandenWyngaard that led to the statements at issue in
this case. We therefore reverse that
portion of the court of appeals decision which affirmed the circuit court's
suppression order.[6]
By the Court.—The decision of the court of appeals is affirmed
in part, reversed in part, and the cause remanded for further proceedings not
inconsistent with this opinion.
SUPREME
COURT OF WISCONSIN
Case No.: 94-2791-CR
Complete Title
of Case: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Brian J. Coerper,
Defendant-Respondent-Cross
Petitioner.
_____________________________________
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 192 Wis. 2d
566, 531 N.W.2d 614
(Ct. App. 1995)
PUBLISHED
Opinion Filed: February 20, 1996
Submitted on Briefs:
Oral Argument: November
30, 1995
Source of APPEAL
COURT: Circuit
COUNTY: Outagamie
JUDGE: DENNIS C. LUEBKE
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the plaintiff-appellant-petitioner the
cause was argued by Sharon Ruhly, assistant attorney general, with whom
on the briefs was James E. Doyle, attorney general.
For the
defendant-respondent-cross petitioner there were briefs by Leonard D.
Kachinsky and Kachinsky Law Offices, Neenah and oral argument by Leonard
D. Kachinsky.
[1] Section
303.08 provides in part:
303.08 "Huber Law"; employment of county
jail prisoners. (1) Any person sentenced to a county
jail for crime . . . may be granted the privilege of leaving the jail during
necessary and reasonable hours for any of the following purposes:
.
. .
(b)
Working at employment;
. . . .
[3] The
Fifth Amendment provides in part:
No
person . . . shall be compelled in any criminal case to be a witness against
himself.
U.S. Const. amend. V.
[4] The
Sixth Amendment provides in part:
In all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for
his defence.
U.S. Const. amend. VI.
[5] Article
I, § 8(1) provides in part:
(1) No person . . . may be compelled in any criminal
case to be a witness against himself or herself.
Wis. Const. art. I, § 8(1).
[6] Having resolved this case on the grounds that Coerper never personally invoked his Miranda-Edwards right to counsel, we do not reach the issue of whether a suspect, having made a proper invocation, can be the subject of a police-initiated undercover investigation. See Illinois v. Perkins, 496 U.S. 292, 300-03 (1990) (Brennan, J., concurring).