July 31, 2012 – A criminal defendant who originally asked for a lawyer during custodial interrogation, but later changed his mind and made incriminating statements, does not get the benefit of Miranda protections just because his lawyer showed up.

Explaining that “Miranda could not anticipate, and does not provide answers for, every possible fact situation,” a Wisconsin Supreme Court majority (5-2) ruled in State v. Stevens, 2012 WI 97 (July 13, 2012), that David Stevens’ Miranda waiver was “knowing” under the circumstances.

In addition, the majority revisited a prior case – Blum v. 1^st Auto & Casualty Insurance Co., 2010 WI 78, 326 Wis.2d 729, 786 N.W.2d 78 – to clarify that cases lose all precedential value if the supreme court overrules them, unless specifically stated in the overruling opinion.

Facts and Background 

Stevens was a convicted sex offender in 2008 when he allegedly made inappropriate contact with an eight-year-old girl at an apartment complex pool in Waukesha. Police arrested Stevens, 19 years old, and brought him to the police station, where he was held overnight.

During questioning the next day, Stevens waived his Miranda rights, which give criminal suspects a right to have a lawyer present during questioning. After several minutes of questioning, Stevens invoked his right to a lawyer and questioning stopped. Soon after, Stevens changed his mind. The detective told him he would return for additional interrogation.

Meanwhile, Stevens’ mother had contacted Stevens’ lawyer on another case. The lawyer showed up at the police station, asking to see Stevens, but a lieutenant denied access, later testifying that Stevens made no request for his lawyer. The attorney left the station.

The detective returned, and questioning resumed. Stevens was not informed that his attorney had come. In an interview, Stevens clearly waived his Miranda rights, including his right to an attorney. He then made incriminating statements about his contact with the eight-year-old girl.

The state charged Stevens with sexual contact with a child under age 13, a first-degree sexual assault charge. Stevens moved to suppress statements to police. A circuit court granted the motion, concluding that Stevens may have been induced to ask for his attorney, invoking his right, if he was informed the attorney showed up. Thus, Stevens' second Miranda waiver was not a “knowing waiver,” according to the circuit court.

An appeals court reversed and remanded the case for trial, concluding that Stevens’ knowledge concerning his attorney’s presence did not impact his second Miranda waiver as “knowing” and “voluntary.” A Wisconsin Supreme Court majority affirmed.

“The present case is like a law school exam question that tests conflicting principles and challenges the court to synthesize and reconcile the decisions in a number of key Supreme Court and Wisconsin Supreme Court cases that have interpreted Miranda over the past four decades,” wrote Justice David Prosser for the majority of justices.

Miranda’s Reach  

Under the Fifth Amendment to the U.S. Constitution (and Wis. Const. Art I, Section 8), Miranda v. Arizona, 384 U.S. 436 (1966), and subsequent cases, police must give arrested persons Miranda warnings and cease questioning where a suspect invokes a right to an attorney. However, police may resume questioning if the suspect initiates further communication with police.

“If the suspect wishes to be placed on the equivalent of a ‘do not call” list, he must invoke a right to counsel so police do not approach him to ask questions,” Justice Prosser wrote. “But something else happened. … [Stevens] cancelled his invocation of the right to counsel by initiating a dialogue in which he asked to continue the interrogation.”

Like the U.S. Supreme Court in Moran v. Burbine, 475 U.S. 412 (1986), the Wisconsin Supreme Court majority refused to extend Miranda protections to require that suspects are informed on the status of their legal representation when they have waived their Miranda rights.

“[W]e conclude that Stevens’ Fifth Amendment privilege against self-incrimination and his equivalent right under Article I, Section 8 of the Wisconsin Constitution were not violated and that Stevens’ oral and written statements should not be suppressed,” Justice Prosser wrote.

Precedential Value and Blum Revisited

Citing State v. Middleton, 135 2d 297, 399 N.W.2d 917 (Ct. App. 1986), Stevens argued that police could not resume questioning without informing Stevens that his lawyer attempted to see him. In Middleton, the defendant called his wife and told her to call a local attorney. An officer overheard the conversation, but did not tell police who were interrogating him.

The defendant, Middleton, did not invoke a right to counsel. The lawyer showed up, but police did not tell Middleton and he made incriminating statements to police. A state appeals court ruled that certain statements made after Middleton’s lawyer arrived must be suppressed. The circuit court relied on Middleton to rule in favor of Stevens on the suppression issue.

Under Blum, however, a case loses precedential value if any part of it is overruled, unless the Wisconsin Supreme Court specifically states otherwise, the majority explained.

A subsequent case, State v. Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776 overruled a one aspect of Middleton, the supreme court majority noted. The Anson court did not overrule the entire Middleton decision, the supreme court explained, but “Middleton is distinguishable from this case and is now completely overruled on the merits.”

The supreme court majority explained that Blum can be applied retroactively, with a caveat.

“In cases prior to Blum, if this court did not use any qualifying language in overruling a court of appeals decision, it probably intended to overrule the decision in its entirety as Blum holds. However, if this court used qualifying language, it probably intended something less than a total overruling and the surviving portion of the overruled decision may be cited as precedent.”

Concurrences and Dissent 

Justice Annette Ziegler (joined by Justices Patience Roggensack and Michael Gableman) wrote separately to clarify the rule in Blum as applied to cases before Blum.

“Quite obviously, prior to Blum, no court could have known that it was expected to utilize magic language when partially overruling a court of appeals decision,” she wrote. “In applying the rule, we simply must determine whether the court, in ‘overruling’ a court of appeals decision, intended to overrule the entire decision or only a portion thereof.”

Chief Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) concurred in the majority opinion on Blum, but dissented on the Miranda issue. The chief justice argued the Stevens’ invoked a right to counsel that was effective until the second Miranda waiver.

“I therefore conclude that Stevens’ Fifth Amendment right to counsel was violated when law enforcement failed to advise Stevens that counsel was available to speak with him,” she wrote.