Jan. 27, 2024 – The Wisconsin Court of Appeals did not misapply U.S. Supreme Court precedent by ruling against a defendant who argued that he’d invoked his right to remain silent when he said he had nothing to say about a homicide, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Wesley v. Hepp, No. 22-2968 (Jan. 5, 2024), a three-judge panel for the Seventh Circuit Appeals Court held that the defendant’s statement was equivocal because while it could have meant the defendant wanted to remain silent, it could also have meant he had nothing to do with the homicide.

First Interrogation

Milwaukee Police Department officers arrested Johnnie Wesley on Feb. 5, 2014, in connection with the shooting death of Bruce Lloyd.

On Feb. 6, Detective Katherine Spano questioned Wesley just before noon.

When Spano asked whether Wesley wanted to talk to her, he said “About no murder, no.”

Second Interrogation

Just before 9:30 p.m. on Feb. 6, 2014, Detective Kevin Klemstein attempted to question Wesley. But Wesley again said he didn’t want to talk.

Third Interrogation

Just before 3 p.m. on Feb. 7, Detective Dalland and Detective Kent Corbett questioned Wesley.

After Dalland said that Wesley could talk after Dalland went through some things, Wesley said “Ain’t nothing to talk about, though.”

Dalland then said “If that’s what you want to tell me, then that is your right …. But, like I said, I have our little rules that we have to go by, OK?”

After Dalland gave Wesley a Miranda warning, he asked Wesley if he could question him.

“I ain’t got shit to say about no homicide,” Wesley replied.

Dalland said that Wesley could decide which questions he wanted to answer.

“I ain’t got shit to talk about no homicide because I ain’t know nothing about it,” Wesley replied.

Wesley admitted buying marijuana from Lloyd several months earlier. But he denied having anything to do with Lloyd’s death.

Dalland resumed questioning Wesley. Wesley asked, “Can I go back to my cell now?”

Eventually, Wesley admitted that he’d tried to rob Lloyd at gunpoint and shot him during the ensuing struggle.

Habeas Corpus Petition

The Milwaukee County District Attorney charged Wesley with a single count of felony murder.

Wesley moved to suppress his admission. He argued that: 1) the detectives failed to scrupulously honor his first invocation of his right to remain silent; and 2) he unequivocally invoked his right to remain silent during the third interrogation.

The trial court denied Wesley’s motion, and he later pled guilty.

The Wisconsin Court of Appeals affirmed Wesley’s conviction. Wesley petitioned the Wisconsin Supreme Court but the court denied his petition.

Wesley then petitioned for a writ of habeas corpus under 28 U.S.C. sec 2254. The U.S. District Court for the Eastern District of Wisconsin denied the petition; Wesley appealed.

Standard Under 28 U.S.C. sec 2254

Judge Thomas Kirch began his opinion for the three-judge panel by explaining that under 28 U.S.C. sec 2254, a federal court may only grant a habeas corpus petition if the state court decision was either: 1) contrary to or involved an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court; or 2) based on a unreasonable determination of the facts, given the evidence presented in the state court proceeding.

Wesley argued that the Wisconsin Court of Appeals misapplied Michigan v. Mosley, 423 U.S. 96 (1975) and Berghuis v. Thompkins, 560 U.S. 370 (2010).

State Court Correctly Applied Mosley

Kirch explained that under Michigan v. Mosley, a court may admit statements obtained after a defendant has invoked his or her right to remain silent only if the defendant’s request to stop questioning was “scrupulously honored.”

Judge Kirch pointed out in applying Mosley to Wesley’s case, the Wisconsin Court of Appeals had used a multi-factor test based on a similar test used by the Seventh Circuit.

“State courts may adopt their own multi-factor tests based on [Supreme Court] precedent, so long as the test accurately reflects the law; here it does,” Kirch wrote.

Judge Kirch concluded that that the Wisconsin Court of Appeals properly applied Mosley, based on the following factors:

• the detectives ended the first interrogation of Wesley soon after he invoked his right to remain silent;

• significant time elapsed between the interrogations (nine hours between the first and second; nearly 18 hours between the second and third);

• the detectives gave Kelsey a Miranda warning before the third interrogation; and

• ·the detective who questioned Wesley in the first interrogation was not the detective who questioned him in the third interrogation.

State Court Correctly Applied Berghuis

Under Berghuis, Kirch explained, the police are not required to stop questioning a suspect if his or her invocation of the right to remain silent is “ambiguous or equivocal.”

Welsey argued that by uttering the following statements, he’d made an unequivocal invocation of his right to remain silent:

• “Ain’t nothing to talk about though;”

• “I ain’t got shit to say about no homicide;” and

• “Can I go back to my cell now?”

Judge Kirch reasoned that the detectives could have reasonably interpreted the first statement to be an assertion that Wesley knew nothing about the crime and shouldn’t be detained, rather than an invocation of his right to remain silent.

“In fact, [Wesley’s] subsequent statements support this latter interpretation,” Kirch wrote. “It was not objectively unreasonable for the Wisconsin Court of Appeals to find Wesley’s statement to be merely exculpatory, rather than an invocation of silence.”

The same was true of the second statement, Judge Kirch concluded.

Judge Kirch concluded Wesley’s third statement was ambiguous because it lent itself to multiple interpretations.

“Of course, Wesley believes that the only reasonable inference is that he invoked his right to remain silent,” Kirch wrote.

“However, another possible inference based on the plain, ordinary meaning of the statement is that Wesley, after a noticeable five-second pause in questioning, was simply asking if the interrogation was over and if he could return to his cell.”