State v. Jones

Plaintiff-Respondent,† Wisconsin, State Defendant-Appellant-Petitioner. A. Jason Jones,

Supreme Court argument Oral November No. 92-1316-CR. 2, 1995. May

1994. Decided 79.) (Also reported in 532 N.W.2d Per Curiam for Reconsideration denied with †Motion 29,1995. issued June there was defendant-appellant-petitioner

For the Hoskins, Brown, VanDeHey P. Robert by a brief oral Kalnins, & VanDeHey, Lancaster and McNamara VanDeHey. Robert P. by argument argued the cause was For the plaintiff-respondent Gansner, L. attorney general, William assistant E. Doyle, was James on the brief with whom general. deci- unpublished of an This is a review

DAY, J. of a judgment that affirmed the court of appeals of sion Honor- County, court for Grant of the circuit conviction found A jury R. Wagner, judge. able John Jones, first-degree guilty Mr. Jason A. defendant, 1991-92, 940.01, Stats. homicide, sec. and intentional Mr. Jones 1991-92. 943.10(2)(a), Stats. sec. burglary, eligibility a parole to life in with prison was sentenced count, and a consecutive the homicide 2041 on date of count. on the burglary term prison twenty year to refusing sup- by court erred the trial asserts that in violation taken argues he were statements press self-incrimina- against privilege fifth amendment counsel. Jones amendment his sixth tion and relying erred appeals the court of also asserts he committed after mandated that was on a decision to allow refusal the trial court's in upholding his crime inten- degree on second instruction jury an offered so affirm error, We find no tional homicide. court of appeals. decision of the 16,1991, Jones, at on who midnight May

At about and Mr. Leonard years old, the time was seventeen Szyman- of Mr. Gerald into Crary apartment broke him and him, repeatedly stabbing ski and attacked attack, Szymanski After the Mr. his throat. cutting collapsed station before he managed gas to walk and died. 17, 1991, the May 2:45 on

At about a.m. Mathews, Szymanski's Mr. daughter, notified Ms. Kim took Ms. Mathews death. An officer of her father's station, where she made across the street the police Ms. call. The officer was "bothered" because telephone told of upon being no of emotion signs Mathews showed home at Ms. Mathews returned her father's death. a.m. about 3:00 Ms. a.m., the officer returned

About 5:30 other officers and received Mathews home with several residence. The officers her to search her permission bedroom, in a and Jones Crary asleep found Jones and in the room of told, living to remain gunpoint, found knives —the mur- the home. The officers also two of blood stained several items weapons der —and clothing. Grant Sheriffs County Jim of the Kopp

Deputy him to his accompany asked Jones Department which was in front of Ms. Mathews house. squad car told Jones that he was under arrest Kopp Deputy wanted, if he he to the house but could return end of the that he would be arrested the probably his rights then advised Jones of day. Deputy Kopp Arizona, Miranda (1966), under 384 U.S. 436 one Jones a written waiver. The two talked for signed hour, no during incriminating which time Jones made statements. Ms. Mathew's the car outside squad

While in resi- of a rest room. the use dence, Jones requested Deppty Police Department, to the Fennimore drove Jones Kopp station, Deputy Kopp at the arriving but before stopped When residence.1 Szymanski's outside Mr. briefly they the Jones used department, at the police arrived rest continued room, Deputy Kopp and afterwards the the Miranda He did not reread warnings interview. inter- before. In this about one hour Jones had waived him at that placed a statement view, gave the mur- denied murder, planning but he scene of the to Jones' first According the victim. stabbing der or at a.m.: he 8:47 signed statement which the reason for Kopp as follows about Deputy testified stop victim's residence: at the

Q. you stop Why there? did department going police and I couldn't to the Because we were A. key, police department, have a get I don't into stopped if him he and I and asked of Police was there Chief department police and turn go in could and unlock computer it. on so I could use Q. agreed to do that? And he Yes.

A. police department? Q. you continued to the And A. Yes. about the time involved:

Deputy Kopp also testified Terry Q. you of Kim and Matthews left the When residence leaving defendant, by I the residence with the 1275 9th Street car, long your squad leaving how did it take area in mean department? get yqu to the minute, five minutes for and a half. It was under A. a minute A sure. went, I house that up guy's CC and went to the

We name_On way over, we died, I don't know go into the house going it and we were discussed VCRs, along with any money take we could find into the house . . . anything like that. We walked the door and it opened There was a door and CC barking bedroom, dog a started must have been a bed, from a CC at this time guy jumped up and a guy with freaked out and reached out and stuck I knife, squirting, I hear like blood can't could like when really something the sound. It is describe I pig its head cut off.... at no time stabbed has in the I washed the knife off while CC was man.... knife that I washed the off bathroom and the reason any burglary of the get so I could rid of evidence was stabbing. or transported giving statement, Jones

After was County Jail. the Grant Attor- seventeen, the District

Because Jones was County ney's the Grant Services office notified Social juvenile Department worker, A intake of the arrest. juvenile Hughey, notice that a Mr. Thomas received being County in the Grant Jail at about 9:30 held Hughey May met with Jones at the a.m., 17,1994. Mr. jail gave following testimony that meet- about ing:

Q. you regard did do in to the interview itself What

with the defendant? right I he had a to an A. let Mr. Jones know that attorney attorney and that to an included have for the hearings detention that he would there was reason to court to determine whether hold him in secure detention. con-

Q. say anything Did Jason Jones at that time cerning lawyer? say

A. He did County he had an in Sauk I let him may practi- know that that not be cal for the detention hearing as far as an attorney getting here, down but if the not, attorney could he right would have a attorney probably have an from public defender's office at the hearing. detention Q. say anything Did he more at that time? No,

A. he did not. Q. happened What after that conversation was

concluded? conversation, began asking A. After that Jason me questions likely about what was I happen. him likely did let know it was that we would seek to waive him adult That into court. questions happen

other such as what could him would be attorney. better answered an Hughey cross-examination, On Mr. stated: Q. concerning How did the discussion Sauk

County and the County attorney Sauk come up?

A. When I let him know he had a to an attor- said, "I ney, already got he have one." That he represent County had one him in in other Sauk matters.

Q. repre- And so he felt that this would be

senting regarding County him the Grant matters? thought.

A. I don't know what he Hughey attempted Mr. later Jones to see if contact any questions rights. Again he had about his on cross- Hughey what he was asked about examination, Mr. making thinking that call: when was that J Q. reason to believe ason you Did have some about those issues? have been confused might my part No, attempt on to make A. it was more I's dotted and the that, guess, I were sure were crossed. T's approximately talking 10:50 Jones,

After with Custody Temporary Physical Hughey a.m., filed a Mr. Hughey Request form, J-103. Mr. then notified Form juvenile there Defender's Office that the Public Hearing custody had been and that Detention p.m.2 The Assistant District Attor- for 1:00 scheduled ney give requested Hughey the Public that Mr. juvenile, to of the and not Defender's Office the name legal parents the defendant's the defendant's or contact guardian, County. Shortly Mr. thereafter, Sauk Attorney Hughey he District that told the Assistant by parents obligated to the defendant's law inform was legal custodian, and the Assistant District and Attorney do told him to so. Hearing,

Upon learning the Pub- of the Detention appointed Lancaster, Officein Wisconsin lic Defender's represent counsel, Mark Hoskins to local Attorney immedi- from Hoskins' office Jones. Someone jail personnel ately that no one was advised County Cap- the defendant. Grant Sheriffs interview instruction, Krohn of the but decided tain knew a.m., Attorney's time before 11:35 the District Some hearing p.m. be for request rescheduled 4:00 because work, statements, "they doing paper whatever" was were still granted. anyway jail personnel

interview Jones because told requested attorney. him Jones had not Captain At the outset of the interview, Krohn asked Jones if he had been informed of his constitu- rights, responded tional and Jones that he had. Captain Krohn then asked if Jones he understood that rights applied. those same still he said did. Jones incriminating then made an signed hq statement which p.m. signed at 12:07 That statement contains his admissions that he stabbed the victim and that he possibility killing prior discussed the the victim pertinent part: in assault. It reads plan go [T]he gentleman's and rob this apart- ment. leaving We discussed before that if plan didn't work we would kill the man. CC had a buck knife and I had a silver-handled knife. After gotwe apartment, to the jumped up the man out of the bed got away the knife from CC. We both then jumped at the fighting man. We were for I the knife. had the man from the back with one arm aromad the neck and top the other on of his forehead. CC was trying get underneath him. CC was the knife away back from him. The man's arm which was holding the knife came got down and CC stabbed in I my pocket arm. reached in opened blade pushing the knob on the blade and it came out. I then stabbed the man in the left I side. also stabbed the I man the back. don't recall how many times. I also stabbed him on the front I believe got back, once. After CC the knife I went over to the dog try to kill it. days, Deputy Kopp

Over the next few received, messages speak from Jones that Jones wanted to Deputy Kopp him. th§ did not contact Mr. Hoskins or Attorney's prior meeting District Office Jones, with interrogate Kopp Deputy not that he did testified interviewing only room him into the took Jones, but given talked. Jones was while Jones and listened Deputy rights these interviews. before his Miranda Kopp statements from at least four other obtained in these interviews. Jones court, where the State waived into adult

Jones was Crary alleged the victim murdered that Jones and by they Mathews or asked to do so Ms. were because sought to introduce evi- son-in-law. Jones the victim's allegedly sexually Szymanski had that Mr. dence daughter and had her Ms. Mathews and assaulted sexually assaulting Mathew's Ms. convicted of been sought to introduce evidence Jones also sister-in-law. addition, In the victim had committed. of other crimes degree requested jury on second instruction Jones (formerly manslaugh- homicide intentional defense). ter/imperfect trial court did not admit The alleged or criminal the victim's crimes evidence of rejected offered instruction. and record first-degree jury intentional A convicted Jones of contrary 1991-92, 940.01, Stats. homicide to sec. 943.10(2)(a), burglary contrary Stats. 1991-92. to sec. appeals appealed the court of his conviction to Jones arguments, asserting sixth amendment fifth and jury permit improper instruction, refusal to arguments not before this court: unlawful two other and erroneous exercise of sentenc search and seizure appeals ing a decision The court of issued discretion. deciding against affirming conviction, all issues unpublished Jones, 92-1316-CR, Jones. State v. No. (Wis. 18, 1993). petitioned App. opinion Ct. Nov. granted 8,1994. for review which was on March both constitu presents statutory This case issues. These are questions interpretation tional State v. deference the lower courts. reviewed without Inc., Co., Const. 2d 1045, 1052, 512 P.G. Miron 181 Wis. (1994). 499 The case also several presents N.W.2d that of constitutional require "application questions Woods, State v. as 117 facts found." principles (1984).3 701, 715, 345 2d N.W.2d 457 Those issues Wis. of constitutional fact which must be inde questions are Id. at 715. this by determined Court. pendently TO AMENDMENT COUNSEL FIFTH RIGHT ISSUES known in

It is clear under the well decision Miranda and the followed it many decisions have if a an custodial attorney during suspect requests before provided continuing one must be interrogation, Arizona, 384 U.S. at See Miranda v. any questioning. (1981). Arizona, 477, 451 Edwards 474; U.S. 484-85 nom" The "overruled sub dissent states that case was (7th 1986). Clusen, explained Cir. As Woods v. 794 F.2d p. a habeas case connected with Woods. Clusen was infra original in the corpus proceeding "The writ habeas is not a independent civil suit" that "does prosecution criminal but only review appellate review 'collateral' not afford 'direct' but Randy S. Liebman & legality judgments." of criminal James Procedure, Hertz, Corpus sec. 2.2 Habeas Practice and Federal (footnotes (2d 1994) omitted). corpus 6-7 ed. Since the habeas collateral, independent civil suit a federal court case Court, Supreme it cannot have other than the United States different, criminal by this in a "overruled" the decision court suit. was his state- attorney mention an only attorney an in one," referring

ment, already got "I in mat- him another who had represented Sauk County Lampe, State 206, 119 2d v. Wis. that argues ter. Jones a line" rule (1984), adopted "bright 349 N.W.2d 677 requires attorney reference to an any Lampe That interpretation questioning. cease all Walkowiak, State v. 2d 183 Wis. was in rejected (1994). There this Court stated that 515 N.W.2d 863 not "talis- "attorney" and do have "lawyer" the terms Id. 487. manic at qualities." argued that argument, At oral Jones' counsel for statement, not an ambiguous request Jones' "was request this was attorney, for an there is attorney, an Illinois, v. Smith it." In 469 about ambiguous nothing Court (1984), Supreme 91 the United States U.S. for counsel about stated, nothing request "[w]here request or would leading up the circumstances Id. must cease." questioning render it all ambiguous, not a However, 98. statement was simply Jones' A for is a state- request for counsel. counsel request his desire to "expresses] ment in which person, Edwards, counsel." only through deal with the police of a lawyer 451 U.S. at 484. Jones’ mention in another arguably express does not even that desire. county Therefore, that Jones' we conclude statement was for request an attorney. stated, "I argument,

Also at oral Jones' counsel did Walkowiak in mention the case argument initial my said, it ambiguity, which if there is an has be cleared I think that in this case if there was up, particular the state had the burden to it ambiguity pick up...." Walkowiak, suspect's In this Court held that a state- ment, "Do think I need an necessitated a you attorney?" it officer because the questioning from response Id. at 486.4 uncertainty." has "suspect showed said to be an equivocal question Such a statement Id. Jones' statement here to an attorney. or reference fact, In his statements uncertainty. shows no to an attor- knew of his that Jones actions show Further, one present. on without go and chose ney are almost unanimous country throughout courts who reference to an that a holding suspect's in Consti exclusively the United States relied on Walkowiak decision. One month law to reach its and federal case tution Walkowiak, the United States in this Court's decision after U.S., (1994), rejected S.Ct. Supreme Court Davis in federal cases cited overruling the "clarify" approach, obstacles Supreme Court listed The United States Walkowiak. judgment calls" and the "difficult law enforcement to efficient they guess suppression if the threat of required of officers "with Id. at overruling those cases. rationale for wrong" as the Court held that "clarify" approach, the place In of the 2356-57. at 2355. unambiguously request counsel." Id. suspect "must as its decision Supreme Court summarized The United States follows: suspect is entitled recapitulate: held in Miranda that a To We during interrogation even of counsel custodial the assistance

to provide for assistance. We though does not such the Constitution right suspect to counsel at if the invokes the in Edwards that held immediately questioning him time, until any must cease layer unwilling attorney present. to create a third But we are an is suspect police questioning prophylaxis prevent when the to actually requests lawyer. suspect an might Unless the want a may attorney, questioning continue. Id. at 2356-57. Davis, already reached relying on has appeals,

The court of 387, 2d Long, v. 190 Wis. contrary to Walkowiak. State a result 1994) (Ct. as (petition for review denied App. 526 NW2d 826 filed). untimely

95 currently representing him in previously or is had request for counsel.5 not a matter is another 5 (11th 1989), 285, Cir. 294 Delap Dugger, 890 F.2d v. See (1990) (defendant's that he denied, statement 496 U.S. 929 cert not matter did in an unrelated represented by counsel counsel); for Commonwealth equivocal request constitute an 1989) (defendant's (Pa. Davis, 458, Super. 459-60 565 A.2d fifth of his lawyer." not an invocation "I have a statement response in to a state right when made amendment to counsel preliminary at his right representation to ment that he had a (Fla. 1984) 353, State, So. 2d 356 arraignment); Doyle v. (defendant's represented him attorney who had remark that the enough to currently out of town in an earlier matter was counsel); Thomp State v. right to invoke his fifth amendment 1983) (defendant's son, (N.C.App. 838, S.E.2d 840-41 in the lawyer represented him particular had statement that a present questioning right have counsel past not invoke did trial, ques not at representation at reference was to where the (Ind. State, App. 3 Dist. N.E.2d tioning); Vail v. 1989) (defendant's prospect of response to the statement it, going I'm charges "if I have to do going to court on attempt not an my lawyer again." get Langston for have or to consult with to remain silent invoke Cardona, 845, 847, 849 632 A.2d proceeding); State v. before 1993) (reference (N. money attorney who "stole" Super J. A.D. representation together with past in a from the defendant ambiguous request for counsel where poverty not an claimed already voluntary statement and had given had defendant occasions); rights multiple on State v. read his Miranda been (defendant's 945 (R.I.1991) Ducharme, 937, claim that A.2d 601 attorney attorney-client relationship an not an with he had requested the assistance of counsel probative as to whether he Coleman, 270, matter), 279 particular People v. 586 N.E.2d in a 1991), part part reversed in on (Ill.App. 1 Dist. and affirmed (Ill. 1993) (defendant's accept grounds, other 617 N.E.2d operate charges did not also ance of counsel on unrelated interrogation); protection against but see State invoke a only the words Jones used. We We examine leading up to the state- at the circumstances also look statement. Here the context of the actual ment and demonstrate that Jones' state- those circumstances equivocal Jones not an reference to counsel. ment was being rights for after advised of his made the statement already given after he had one time, the second and incriminating Further, to the authorities. statement not made in the coercive environ- the statement was police interrogation, rather was made to a ment of a but discussing juvenile intake worker while the two were attorney pre- right to have an not the fifth amendment right questioning, the sixth amendment sent at but Finally, hearing. minutes have one at his detention willingness expressed further to answer later Jones questions he was reminded of his constitutional after rights again that he remembered and stated rights. those waived argues must find his also this Court County lawyer an in Sauk to be

statement about his attorney present dur- of his to have an invocation way ing questioning that Mr. that was the because interpreted Hughey, juvenile it. worker, intake Hughey's thought process interpretation of Mr. Jones' Hughey supported Mr. did contact the record. is not meeting with after his Defender's Office the Public inform the Public However, he did not Jones. 1990) (reference (Utah Christopherson, 793 P. 2d App. represent the defendant appointed been who had "arguably pending matter found to be separate in a that he had not equivocal" because the defendant said reference him, admissible because yet spoken with but statement ambiguous clarify approach to references stop and followed counsel). the name the individual who Defender's Office the told them the concerned, but Hearing only Detention Further, when asked Hearing. the Detention time of that the Sauk of whether Jones felt the direct question Mr. him, be County attorney representing would know he thought." "I don't what Hughey responded, to Mr. later Hughey attempted the fact that Finally, not Jones shows that he did believe that contact Jones thus demon- counsel. The evidence requested had Hughey Mr. a reasonable doubt that beyond strates Office to assure Jones' contacted the Public Defender's Hearing the attorney to an at Detention statutory right had he Jones honored, thought because was his fifth rights. invoked amendment invoke his fifth amend- personally Jones did not to the statement attorney prior giving ment to an right However, he Krohn knew p.m. Captain at 12:07 signed had for appointed that Hoskins been Attorney had no one interview Jones and that he asked that was argues knowledge until he arrived. Jones fifth amendment rights. invoke his enough Hanson, 2d Wis. rejected Such claim was attor- There, at asked an parents 213. defendant's their son. Id. at That 203. ney represent one the defen- question told the no police interviewed dant unless he was but present, Id. This Court held the defendant at 204-05. anyway. to counsel and the to remain that, right right "Since the he defendant, are given by silent constitution Id. at 213. rights." alone can exercise those amendment Since Jones never invoked fifth counsel, he signed p.m. statement 12:07 a reason- beyond is if State can prove admissible intelligently doubt that Jones knowingly, able rights. voluntarily Woods, 117 his Miranda waived argues no valid that there was 722. Jones 2d at Wis. 48.23(l)(a), 1991-92,6 Stats. sec. because waiver requires in to be made court. Because a waiver such right juvenile's counsel, to not with a deals that section during questioning, hearing, during detention but under the section to counsel and because Jones' (see 105), p. yet Jones' had not attached 104— infra approved by the court. not need to be waiver did knowing, argues was not that his waiver Captain voluntary intelligent did Krohn and because prior beginning warnings to Miranda re-read the interrogation was not informed and because Jones the arguments Attorney presence. are These of Hoskin's contrary law. to well established Fillyaw, 700, 725, 2d 104 Wis.

In State v. (1982), (1981), denied, 455 U.S. cert N.W.2d 795 repeatedly necessary "[i]t to is not held that this Court investigation during warnings of an recite the Miranda person Here, Jones was the crime." for same the same by police, rights once Mr. once Miranda read his applied they Hughey, still he was reminded giving to just prior This sufficient his statement. requirement satisfy Jones be Miranda rights. apprised of his (1991-92), 48.23(l)(a), provides part: Stats. Section (1) TO Right RIGHT OP CHILDREN to counsel.

48.23 subject proceedings Children LEGAL REPRESENTATION. representation legal as follows: chapter shall be afforded under this (a) alleged delinquent 48.12 or held Any under s. child to be represented by all facility counsel at shall be in a secure detention may years age proceedings, or older stages a child 15 of the but knowingly is that the waiver if the court is satisfied waive counsel accepts the waiver.... voluntarily made and the court the fifth in Hanson Court held that Similarly, advise the require "does not amendment of a availability particular of the immediate suspect Hanson, reasoning 2d at 208. The 136 Wis. attorney." from a United States the Hanson court quoted in the applicable is opinion equally Court Supreme case before us: Miranda

Because, holds, comprehension full as rights request remain silent and inher- coercion is dispel whatever are sufficient requiring interrogation process, rule ent in attorney's suspect of an efforts police to inform the to of protection the to contact him would contribute incidentally, if privilege only the Fifth Amendment however, benefit, would come at all. This minimal society's legitimate and sub- substantial cost to a of securing guilt. in admissions stantial interest Burbine, v. Id. at 210 (quoting Moran 412, 427 475 U.S. (1986)). a minute or so within attorneys Jones saw two completed questioning Krohn his and Captain after "out there that attorneys Jones there were two told However, this does not cast see him." were there to nature of voluntary prior on the and knowing doubt Hanson, in "[a]lthough As Court stated waiver. this to waive his ready rights might who was suspect to waiting his mind when told an change be of him, the critical factor would the convenience see need attorney, intelligent perceived the not the seeing Id. legal for counsel." at 212. the Moran court that: agree

We with Miranda to in each reading require attorney's suspect inform of an efforts instance to and, to him would work a substantial we reach think, in the subtle balance inappropriate shift society's compel- [between] in that decision struck convicting, finding, punishing in and ling interest constitutionally [and] violate the law ... those who compulsion. impermissible (citations omitted). Due to our

Moran, 475 U.S. at 426 the United States general following Supreme policy con- issues, on fifth amendment we Court's decisions Court is for the and not this legislature clude it for different requirements ] decide whether "adopt[ and as a mat- [state] the conduct officials employees Moran, U.S. at ter of state law." 428. Fillyaw in and argues holdings

Jones also Hanson should him involved because both apply Further, notes the conduct of adult suspects. murder, the detour the scene of past authorities: Jones' District Attorney's request Assistant refusing guardian not be notified and parents legal he him Mr. with when Hughey speak allow may that while one be Jones contends phoned jail. voluntary intelligent able to obtain a knowing, circumstances, one under these waiver from adult See Woods juvenile. cannot be obtained from a (habeas (7th 1986) Clusen, F.2d Cir. conclusion case with Court's corpus disagreeing Woods, a juvenile's the facts of the case that, under disagree. We voluntary). confession was his state- Jones was a when he juvenile gave Since must be taken to assure ment, greatest "the care Gault, In re 1, was 387 U.S. voluntary." admission (1967). To waiver juvenile's 55 determine whether of totality and we examine the knowing voluntary, circumstances, "juvenile's expe- including age, education, rience, background, intelligence, into has the to under- whether he (inquiry) capacity warnings given, stand the the nature of the Fifth rights, consequences waiving amendment and the rights." (quoting Clusen, 794 F.2d at 296 Fare v. those (1979)). C., Michael U.S. ample in

There is evidence the record to show beyond a reasonable doubt that Jones' waiver was knowing, voluntary intelligent. First, Jones was away eighteenth than ten months from his less birth- day Thus, he committed the when crime. his claim that rulings Fillyaw apply and Hanson should not juvenile persuasive. him he Further, because is is not by judge pre- as stated the trial with reference to the report sentence the record shows that Jones had exten- sive contact with law enforcement officials in investigating juvenile several matters while he was a during placements juvenile as well as in various facili- specifically contrast, ties. In the court in Clusen cited prior the fact that Woods had no criminal record and no previous justice sys- serious contact with the criminal involuntary. tem as factors that made his confession Finally, Clusen, 794 F.2d at 297. Jones demonstrated capacity warnings his to understand the and the conse- quences waiving rights questions when he asked Hughey, of Mr. was told that some of them would be attorney, better answered and decided not to request one.

Jones other claims about the circumstances of the interrogations are likewise without merit. The momen- tary stop prior at the murder site four hours to the incriminating suppress, statement Jones seeks to as explained supra simply n.l, could not have been so emotionally away traumatic as to have taken capacity to understand and exercise his fifth amend- the by The made rights. improper request ment not Mr. Attorney allowing District and Assistant The Jones did not affect Jones. to with Hughey speak his conduct to Attorney District conformed Assistant of informed upon being the law what immediately not, if he had his actions could was, law even as had no influenced Jones' decisions Jones have of Jones could not have Similarly, them. knowledge the contact Mr. by influenced by attempted been he did not about it to mak- prior because know Hughey facts that Again presents his statement. case ing Clusen. in There to those two sets sharply contrast his question officers continued Woods despite "lied to Woods" hour, silent for over one remaining crime, him to and confronted evidence the tying about Clusen, graphic the murder scene. pictures him with F.2d at 297. in the admitting also find no error conversa- We days the Deputy during Jones had with Kopp tions Edwards, In he made his initial statements. after may, Court suspect States held Supreme United them fifth amendment waive asserting rights, after or communication, initiating exchanges, "further Edwards, 451 U.S. at the police." conversations with Court The United States extended Supreme 484-85. in Edwards cases analysis sixth amendment (1986). Jackson, 475 U.S. Michigan Here there is no doubt that Jones initiated on several occa- Kopp. with Jones meetings Deputy talk to left come messages asking Deputy Kopp sions on at least four occasions answered him. Deputy Kopp going listening requests by jail Jones' Edwards, As talk. Court stated Supreme " in the nothing ad Edwards initiated meeting... [h] Amendments would prohibit Fifth and Fourteenth volun- to his listening voluntary, from merely them him at using against teered statements Edwards, not at was Kopp trial." 451 U.S. 485. Deputy his Miranda to rights prior to re-read Jones required 725. Fillyaw, 104 Wis. 2d at these conversations. Dep- shows that arguably Defendant claims the record does listen, did more than however Jones uty just Kopp would not statement or any specific question cite his to level of hence statements interrogation, rise Edwards, 451 486 are U.S. at n.9. admissible. TO AMENDMENT RIGHT STATUTORY /SIXTH COUNSEL in relevant 48.23(l)(a), Stats., provides

Section to be under s. 48.12 child part, "Any alleged delinquent shall facility repre- or held in a secure detention be ..." stages proceedings counsel at all of the sented be legal The or custodian must also parent, guardian, 48.20(8), Section right notified of the child's counsel. Stats. 1991-92.7 Woods,

In this Court held that "neither the tempo- juvenile [the worker] order that intake rary custody of Woods, nor the custodial were signed, interrogation 48.23(l)(a), within the of sec. 'proceedings' meaning Woods, Stats., was 117 required." for which counsel "the Instead, Wis. 2d at 736. first at which proceeding would been entitled to counsel under juvenile] [a have 48.23(1), Stats., hearing sec. court under sec. 1991-92, 48.20(8), provides part: Section Stats. (8) delivery custody or from . . .. . The 48.20 Release . . parent, guardian legal custodian shall also be notified of... the right regardless ability pay.... counsel under 48.23 s. 48.21, Id. under sec. hearing 737. The 48.21." at the time Jones place signed had not taken Stats.,8 had his counsel statutory right thus statement, yet attached. fourteenth amendment Jones' sixth and Similarly, to the incrimi- prior had not attached to counsel rights Kirby In he at 12:07 signed p.m. statement nating Illinois, (1972), the United States U.S. held that sixth amendment Court Supreme time that adver- at or after the only counsel attaches initiated against have been judicial proceedings sary that ana- Woods, In this Court held "the defendant. is cited in Kirby to prosecute' to the 'commitment log sec. 48.25." under delinquency petition a filing Woods, 2d at At the time Jones gave 117 Wis. 738. sec. under petition neither a delinquency statement jurisdiction for Stats.,9 nor a waiver 48.25, petition had 48.18, Stats.,10 for under criminal proceedings delinquency for a 48.21, provides Stats. 1991-92 Section juvenile into if a who has been taken hearing to determine detained, part: in custody provides can be (1) HEARING, custody. Hearing WHEN for child in 48.21 HELD, (a) custody not taken into is If child who has been a 48.20, hearing to whether the child under s. a determine released custody in under criteria of ss. 48.205 be held shall continue to juvenile by judge or court commis- 48.209 shall be conducted 24 hours sioner within (1991-92), 48.25, provides part: in Stats. Section (1) initiating petition file. A authorization 48.25 Petition: signed person chapter by proceedings be who has under this shall alleged knowledge of facts .... (1991-92), 48.18, provides part: in Stats. Section proceedings for children Jurisdiction for criminal 48.18 (1) alleged older; hearing. If a is to have child 14 or waiver right to counsel his sixth amendment filed, been thus yet attached. had right argues juvenile's coun- that even if a hearing, the sec. 48.21 for that

sel does not attach until adequately protected, counsel must be to be juvenile prior hearing to the allowed access to the prepare order to to examine and cross-examine wit- stating hearing. Jones continues nesses at the Attorney means that Hoskins should have been juvenile's allowed immediate access to Jones. While a rights and fourteenth amendment to counsel sixth proceed if would be violated he were forced to with hearing having adequate sec. 48.21 without time to attorney, not mean that consult with his this does immediately investigation must cease their attorney Rather, it when the arrives. at most means that law enforcement officials must allow the adequate opportunity to see and consult with the juvenile prior hearing. allege to the Jones does not adequate Attorney he not have did time to consult with prior hearing, Hoskins to the detention and so Jones rights sixth and fourteenth amendment to counsel by delaying Attorney were not violated Hoskin's initial contact with Jones.

DUE PROCESS ISSUE rejecting appeal ruling In of Jones' the trial court's jury that he was entitled to a instruction on the birthday... violated s. 940.01 or 940.02 on or after his or 14th her attorney may apply the child or district to the court to waive its jurisdiction chapter. under this (2) hearing brought by filing peti- The waiver shall be on alleging delinquency petition tion drafted under s. 48.255 and a for jurisdiction waiver of which shall contain a brief statement of the supporting request facts the for waiver.... 106 degree homicide, of intentional offense second lesser appeals on decision in relied this Court's the court of Camacho, 860, 501 380 Wis. 2d N.W.2d State v. (1993). imperfect Camacho, held this Court In manslaughter 940.05, Stats. under sec. self-defense (now degree intentional homicide second 1985-8611 1991-92)12 940.01(2)(b), includes an Stats. under sec. objective requires objective That element element. he belief that was show a reasonable defendant terminating preventing an unlawful interference or person, or, case, this interference with as in his with 865; sec. Camacho, 176 2d at Wis. "another." 940.01(2)(b), Jones claims Stats. 1991-92. a defense that Camacho removed

Court's decision crime, he committed his available the time was violating applied his him without cannot be so process process. Jones' due We conclude that to due rights warning he had fair were not violated because objective he committed his crime. element when 940.05, part: provided in Section Stats. 1985-86 Manslaughter. of another Whoever causes death 940.05 following guilty being any is of the circumstances human under (2) privi- felony: Unnecessarily, C ... in the exercise of Class . privilege prevent lege of or of others or the self-defense defense felony; of a or terminate commission 1991-92, part: 940.01(2)(b), provides in Stats. Section (2) First-degree MITIGAT- intentional homicide.... 940.01 following defenses The are affirmative ING CIRCUMSTANCES. mitigate 2nd- prosecution which offense under this section (b) Unnecessary degree . . under 940.05: . intentional homicide s. actor he or Death caused believed was because defensiveforce. bodily great danger of death or she or was in imminent another necessary endan- to defend the harm and that the force used person, gered if either belief was unreasonable. the Ex Post Facto underlying The principles as to as well judicial pronouncements "apply Clause 502, Kurzawa, 180 Wis. 2d acts." State legislative denied, 114 S.Ct. 2712 712, cert 510-11, 509 N.W.2d to fair (1994). have a right that persons notion "[T]he to criminal will rise give conduct which of that warning constitu- to our concept fundamental penalties —is States, U.S. United Marks v. liberty." tional (1977). and a due given, is not warning Fair 191-92 occurs, judicial pro- when a new violation process innocent that was "criminalizes conduct nouncement for conduct committed, penalty increases when that was commission, removes a defense or after its Kurzawa, the act was committed." at the time available 180 Wis. 2d at 513. Camacho, ele- objective Court held that

In this of the language to the plain could be traced ment Camacho, 871-72. In reaching 176 Wis. 2d at statute. this Court had Court noted that holding, at 877. This element. Id. objective rejected never 1987 revisions that, "[T]he explain went on to Court crime of imperfect did not alter the the Criminal Code of imperfect crime manslaughter.... [T]he self-defense ele- of an threshold objective still consists self-defense Id. at 882-83 elements." and two subjective ment added). (emphasis or take settled law change

Camacho thus did at the time Jones commit- a defense that existed away in Camacho such, the trial judge, ted his crime. As give the law when he did not correctly interpreted objective that did not contain the uniform instruction Similarly, by refusing element statute. required by court in this instruction, the circuit the offered give accurately interpreted it at the the law as existed case time. change argues in fact Camacho did that by court found it is the fact that the

law, and this shown by necessary reached the court overrule the decision appeals Harp, 861, 150 Wis. 2d in State of 1989). (Ct. App. Camacho, 176 2dWis. at N.W.2d 38 of the elements of However, the statement 881-82. Harp imperfect in which this Court over- self-defense only Further, in case. at the time dicta that ruled was validity of crime, the continued Jones committed already question. in serious dicta was that year handed down one In decision which was year prior Harp crime, Jones' this and one after entitled to a con that defendant was not Court held manslaughter imperfect even of self-defense viction though possessed belief, an actual the defendant paranoia, regarding an mental delusions and caused person. v. Seifert, interference with his State unlawful (1990). 53, One mem 68, 2d 454 N.W.2d 346 155 Wis. decision could be of Court stated that this ber interpreted holding attempted "the of as crime manslaughter encompasses imperfect self-defense (Abrahamson, objective dissent Id. at 72 J. element." 881). (also ing) Camacho, in 176 Wis. 2d cited especially decision, after Sei- Therefore, the Camacho judicial enlargement of not "an unforeseeable fert, "deprive did not the defen statute," a criminal and so warning of fair to which the Constitution dant City Columbia, Bouie v. 378 U.S. entitles him." (1964). 353-54 kind decision did not create the The Camacho " may applied [which] be 'clear the law ... break' retroactively to criminal defendants' detriment." (7th Cir. Burnom, 283, States v. 27 F.3d

United 196). Marks, 1994) create a It did not 430 U.S. at (citing that which made only explicit in the law at all. It break such, As decisions. in this Court's prior implicit Was not violate case does of Camacho to Jones' application rights. process !his due con- correctly court of appeals hold that

We did not violate actions of cluded nor under under the fifth to counsel right Jones' his statutory did not violate amendment, sixth due pro- also hold that Jones' We attorney. to an to allow the refusing by were not violated rights cess offered instruction. jury appeals of the court of

theBy Court. —The decision is affirmed. (dissenting). I ABRAHAMSON, J. S.

SHIRLEY (1) circum- issues: what clarify two separately Write of federal a waiver trigger suspect's stances counsel, silent and to remain rights constitutional (2) does a sus- juvenile what circumstances and under to counsel. statutory right have a pect Walkowiak, 478, 515 In State v. 183 Wis. 2d a (1994), suspect the court ruled that when N.W.2d 863 ambiguous makes an interrogation to custodial subject a officers must lawyer the law enforcement request for suspect whether the clarify their stop questioning One under the Fifth Amendment. is counsel requesting Court, the United States faced later, Supreme !month of law deciding obligations with the same issue of ambiguously a suspect enforcement when officers In counsel, differently. decided the issue requests States, United (1994), 114 S. Ct. 2350 Davis v. a federal constitu- suspect's Court determined that triggered only by right "an is to counsel tional Supremacy lawyer." unambiguous request The for interpretation that the Davis of dictates Clause binding is on courts of this all federal constitution although majority neglects to acknowl- Thus, state. by superseded edge Davis.1 has been it, Walkowiak of a under the constitution The effect Wisconsin suspect's ambiguous request has not for counsel been by The state constitutional issue this court. determined not in and is not raised or addressed Walkowiak present case. or addressed raised majority issue whether While the addresses the attorney, ambiguous request for an this an Jones made major- significance Davis, is of no under issue ity's question the court. blurs the real before discussion majority an whether Jones made The unambiguous request should focus on Adhering attorney. an

for English Davis, stretch of the I no conclude language case can it be circumstances or the attorney. requested unambiguously said Jones' federal constitutional I therefore conclude that violated. counsel was to deter- Nonetheless, the court must look further juvenile, right Jones, had a counsel mine whether 48.23(l)(a), the statutes. Section under Wisconsin provided requires for that counsel be 1991-92, Stats. proceedings.2 juveniles in certain 1 (Ct. App. 826 Long, 190 2d 526 N.W.2d State v. Wis. 1994) Davis). (relying on 2 1993-94, 48.13(l)(a), provides: Stats. Section (1) legal representa- "Right Right counsel. of children to to subject proceedings chapter under shall be

tion. Children to legal representation afforded as follows: (a) delinquent Any alleged s. 48.12 or to be under held child facility represented by be counsel at all in a secure detention shall may years age stages proceedings, of or older but a child the needed relevant facts are the following The A juvenile to counsel. statutory right Jones' determine the defender's public notified jail at the intake worker subject be a.m. that Jones would at about 10:50 office for 1:00 p.m. scheduled hearing detention a juvenile day.3 public the state by attorney appointed An the jail telephoned represent office defender's The police not be interviewed. that Jones to instruct nevertheless attorney's request, aware of the captain, Jones' interview, both During Jones. the questioned office and the defender's by public counsel appointed office arrived defender's public from attorney staff The police captain, with Jones. speak jail not tell Jones did presence, of the attorneys' informed to represent the state attorneys appointed two Instead, captain him.4 waiting to assist him were until he elicited a of Jones resumed his questioning after Jones Directly at about 12:07 p.m.5 confession knowingly that the waiver is counsel if the court is satisfied waive accepts If voluntarily the waiver. made and the court custody may legal accepted, of the not transfer waiver is the court department placement in a secured correctional for child to the facility jurisdiction adult court." or over the child to transfer attorney spoke with the a.m., the district 3At 11:00 about need to that he would intake worker and indicated juvenile attorney asked the hearing. The district the detention postpone advising public defender's office delay intake worker to change p.m. until 12:55 the schedule worker, attempted to juvenile intake who Nor was the time, to see Jones. Jones at about this able reach captain informed that When the Jones, telephoned a interview he jail personnel not to instructed 22:107) attorney appar- (20:48, attorney. The district district obligation no captain that he was under ently informed specifically attorney's request had not because Jones heed the 112 the drafted, cap- confession that the signed captain the if like to attorney. Jones he would see an tain asked that and the allowed captain indicated he would with moments later. him to confer counsel has The Wisconsin determined legislature into be as soon taken shall released juveniles custody 48.20(1). The also legislature Section has as possible. shall hearings detention juveniles facing resolved that 48.23(1)(a), 48.21, be Sections by counsel. represented Woods, 701, 736, State v. 92; 117 2d Wis. Stats. 1991— nom., (1984) sub Woods 345 457 N.W.2d overruled (7th Clusen, 1986); opinion F.2d 293 Cir. majority 48.23 The numerous subsections of sec. 104-105. evidence counsel and waiver thereof limiting requiring juveniles represented. the intent be legislature's Woods, of State v. 701,345 117 Wis. 2d N.W.2d The rule (1984), grant that sec. does not a juvenile 48.23 does counsel a custodial during interrogation, this case. Woods did not attempts not involve govern him the custo during to contact juvenile's attorney interrogation. dial Hanson, relies on State v. majority

The also (1987), counsels' 195, 401 ignore 2d N.W.2d 771 Wis. to consult with interrogation to cease request Hanson, that police In the court determined Jones. suspect to inform adult are not obligated officers Han is to lend attorney when an assistance. present in Moran v. son, turn, echoes the rule established (1986). the Moran Burbine, 475 U.S. 412 Although Fifth Amendment does Court concluded that appointed The requested counsel nor the court counsel. had captain if the who testified that he failed to determine request acting he later as counsel and had made Jones' attorneys' presence of his inform Jones of the because refused to (22:107) attorney. conversation with district of an suspect to inform an adult officers police require states contacts, the Court invited attorney's attempted as a police for conduct different standards adopt opted A have to do of state law. number states matter Moran failure to alter the so.6 Wisconsin's Despite Woods, Hanson, or Moran authorizes in rule, nothing confer a request with ignore attorney's an police hearing. is to a detention suspect subject who juvenile in with the statute keeping grant- I conclude that a to counsel detention right during a the ing juvenile should law enforcement require court hearing, attor- a in when an juvenile custody officers inform 6 suspect determined a should be states have Several attorney's attempted of an communications with informed is determin suspect and that the failure to do so considered voluntary ing suspect knowing, a made whether State, right intelligent of the to counsel. Haliburton v. waiver 1987) (Fla. (concluding suspect's 1088 that a state 514 So. 2d process to due was violated when constitutional suspect's permit hired sister to refused denied, (1991); suspect) cert. 501 U.S. 1259 State confer with (Conn. Stoddard, 1988); State, Bryan v. 446 v. 571 537 A.2d (Ill. (Del. 1990); McCauley, People 645 N.E.2d 923 A.2d 170 v. Commonwealth, 1994), denied; reh'g v. 338 West 887 S.W.2d (Mich. 1992);State 1994);People Wright, (Ky. v. 490 N.W.2d 351 (N.J. State, Reed, 1993); v. 627 Roeder v. 768 S.W.2d A.2d 630 (Ct. 1988). App. 745 Tex. adhering to Burbine include Aultman v.

Jurisdictions (Ala. State, 1992), denied 114 Ct. App. 621 So. 2d 353 Cr. cert. S. (Ark. State, (1993); 1991); People 407 S.W.2d 566 Mitchell v. 816 (Ct. 1995) (not yet Page, App. v. 1995 WL Colo. released 82952 State, reports); Harvey permanent for publication in the law 1988) (Fla. 1083 (distinguishing 529 Haliburton on the So.2d grounds lawyer suspect that the who was refused access to the summoned) denied, specifically 489 1040 was not cert. U.S. (Wash. 1991). Earls, (1989); State v. P.2d ney immediately is available to consult with juvenile hearing. Hanson, before detention See (adult (Abrahamson, dissenting) Wis. at 219 J. 2d suspect). give weight

IWhile am aware of and considerable officers, to the needs of law enforcement criminal investigations public safety, I conclude that this juvenile's statutory right court demeans the to counsel by giving approval prevents its seal of to conduct that juvenile suspect conferring from counsel with before hearing, jail request- detention when counsel is at the ing suspect. to see the forth,

For the reasons set I dissent. I am authorized to that Chief Justice state NATHAN joins opinion. this S. Heffernan following 29,

The memorandum was filed June 1995. (on reconsideration). CURIAM motion

PER for On motion for reconsideration our attention has been called to an erroneous statement of law in the decision for that reason the references to the State's burden proof rights on the issue of waiver of Miranda as "beyond a reasonable doubt" is stricken. In lieu thereof proof approved by the burden of the United States Supreme Connelly, 157, Court in Colorado v. 479 U.S. (1986), "by preponderance of the evidence" is Beaver, substituted. See also State v. 181 Wis. 2d (Ct. 1994); App. Lee, 966-67, 512 N.W.2d 254 State v. (Ct. App. 348, 362-64, 175 Wis. 2d 499 N.W.2d 250 1993); Esser, 897, 904-06, State v. 2d Wis. (Ct. 1992). App. N.W.2d 541

114a from page is stricken following Iir^iddition, of the opinion: slip fourteenth amendment sixth and juvenile's

While a heif forced be violated were rights to would counsel hearing having without a sec. 48.21 proceed with attorney, time to consult with adequate investi- must cease their police mean tiiat does not attorney arrives. immediaMy when gation is inserted: following In lieu thereof fourteenth amendment juvenile's While sixth peti- juvenile if a counsel would be violated rights to hearing 48.21 prior to the sec. tion been filed had hearing with and he were forced proceed consult with his having adequate tiihe to without not mean that must cease attorney, this does immediately attorney investigation when their arrives. 12 of the page error appears a factual

Finally were and the worker juvenile intake slip opinion. to sec. statutory right pursuant Jones' discussing at his detention 48.23(1), Stats., to have an v rights. not his Sixth Amendment hearing, is denied without The motion for reconsideration costs.

114b following page addition, In is stricken from slip opinion: of the juvenile's While a sixth and fourteenth amendment rights to counsel would be violated if he were forced proceed hearing having with a sec. 48.21 without adequate attorney, time to consult with his police does not mean that gation immediately must cëas&thëfrinvesti.. attorney when the arrives. following In lieu thereof the is inserted: juvenile's `Wbilea sixth and fourteenth amendment rights juvenile peti- to counsel would be violated if a prior hearing tion had been filed to the sec. 48.21 proceed hearing and he were forced to with the having adequate without time to consult with his attorney, this does not mean that must cease interrogation immediately attorney their when the arrives.

Finally appears page a factual error 12 of the slip opinion. juvenik Jones and the intake worker were discussing statutory right pursuant Jones' to sec. 48.23(1), Stats., to have an at his detention hearing, rights. not his Sixth. Amendment

The motion for reconsideration is denied without costs.

Case Details

Case Name: State v. Jones

Court Name: Wisconsin Supreme Court

Date Published: May 2, 1995

Citation: 532 N.W.2d 79

Docket Number: 92-1316-CR

Court Abbreviation: Wis.