State v. Forbush

2011 WI 25, 796 N.W.2d 741, 332 Wis. 2d 620, 2011 Wisc. LEXIS 157

• Court: Wisconsin Supreme Court
• Decided: April 29, 2011
• Docket: No. 08AP3007-CR
• Status: Published

Opinions

PATIENCE DRAKE ROGGENSACK, J.

¶ 1.

We review a published decision of the court of appeals¹ reversing the circuit court's² order granting Brad Forbush's (Forbush) motion to suppress statements he made during a police interrogation. The central issue presented is whether the United States Supreme Court's decision in Montejo v. Louisiana, 556 U.S._, 129 S. Ct. 2079 (2009), requires us to overrule Wisconsin precedent that established the parameters of a charged defendant's right to counsel in Wisconsin when a defendant, who has affirmatively invoked his constitutional right to counsel by retaining and receiving the services of counsel on pending charges, is subjected to questioning by law enforcement.

¶ 2. Forbush contends that his right to counsel under the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution was violated by police interrogation because he had affirmatively invoked his right to counsel and counsel was not present when he was asked to waive the right he previously invoked. I agree. For the reasons discussed below, I conclude that in the factual context herein presented, Montejo does not sanction the interrogation that occurred. I so conclude because Forbush's right to counsel under the federal or state constitution had attached and was invoked affirmatively by Forbush before the investigator's questioning was initiated. I also conclude that the circuit court's finding that the investigator knew Forbush had secured legal counsel for the pending charges is not clearly erroneous. Furthermore, Forbush was not required to "re-invoke" his right to counsel when the investigator initiated interrogation. Accordingly, Forbush's statements must be suppressed, and we reverse the decision of the court of appeals.³

I. BACKGROUND

¶ 3. On May 8, 2008, the State of Wisconsin filed a criminal complaint against Forbush charging him with attempted second-degree sexual assault and false imprisonment. A warrant was issued for his arrest. Forbush was arrested in Michigan and made a court appearance there with an attorney he retained for these charges. His brother, Scott Forbush, a licensed Michigan attorney (Attorney Forbush), provided legal representation to Forbush. With the advice of counsel, Forbush waived extradition proceedings. He was transported to Wisconsin in the early morning hours of May 16, 2008. The State stipulated that the district attorney's office was notified that Forbush was represented by counsel prior to Detective Cory Norlander's (Norlander) interrogation of Forbush. Attorney Forbush, as Forbush's lawyer for the pending charges, had contact with Detective Ethan Weber, of the Sheboygan County Sheriffs Department.

¶ 4. On the morning of May 16, Forbush was questioned by Norlander, also of the Sheboygan County Sheriffs Department. Norlander had reviewed Detective Weber's reports prior to his interrogation of For-bush. The interrogation was videotaped. Norlander read Forbush the Miranda⁴ warnings. After 28 minutes of inquiry regarding whether Forbush was willing to waive his right to have counsel present, Norlander repeatedly told Forbush that he would like to hear his side of the story; that it was usually better if law enforcement knew both sides of the story; that Norlander knew only one side of the story, but that he could not hear Forbush's side unless Forbush signed the waiver of rights form. Forbush subsequently gave a verbal waiver and completed a waiver of rights form. Throughout the reminder of the interrogation, Forbush made potentially incriminating statements.

¶ 5. Immediately following the interrogation, For-bush was taken to his initial appearance. Attorney Rebecca Coffee, an attorney with the Mastantuono Law Office, who together with Attorney Forbush has represented Forbush on these charges throughout this case, was present at the initial hearing.

¶ 6. Before trial, Forbush moved to suppress his statements to Norlander on the grounds that his right to counsel was violated⁵ because he was represented by counsel on these charges at the time of the interrogation. Specifically, Forbush asserted that he was represented both by Attorney Forbush, a Michigan attorney, and by Attorney Craig Mastantuono, a Wisconsin attorney, at the time of his interrogation.⁶ Because of his representation by counsel on these charges and because he had been formally charged, Forbush argued that any statements elicited by Norlander violated his Sixth Amendment and Article I, Section 7 right to counsel.

¶ 7. The circuit court found that law enforcement knew Forbush was represented by counsel on the pending charges and concluded that the State had violated Forbush's Sixth Amendment right to counsel. The circuit court granted Forbush's motion, barring the State from introducing Forbush's statements to Norlander.

¶ 8. The State appealed and the court of appeals reversed the suppression order. State v. Forbush, 2010 WI App 11, ¶ 2, 323 Wis. 2d 258, 779 N.W.2d 476. The court of appeals concluded that sometime after the circuit court's decision, the United States Supreme Court in Montejo overruled Michigan v. Jackson, 475 U.S. 625 (1986), and held that the Sixth Amendment does not prevent police from questioning charged and represented defendants. Forbush, 323 Wis. 2d 258, ¶ 2. Because the court of appeals concluded that the circuit court's holding was based entirely on this court's conclusions in State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, and that Dagnall was effectively overruled by Montejo, the court of appeals reversed the circuit court's suppression order. Forbush, 323 Wis. 2d 258, ¶¶ 2, 13.

¶ 9. We granted review and now reverse the court of appeals.

II. DISCUSSION

A. Standard of Review

¶ 10. At issue is whether the United States Supreme Court's decision in Montejo requires us to overrule Wisconsin law that established the parameters of a defendant's right to counsel after he has affirmatively invoked his Sixth Amendment right to counsel by retaining and receiving the services of counsel on the pending charges. This issue "involves the application of constitutional principles to historical facts." State v. Hoppe, 2003 WI 43, ¶ 34, 261 Wis. 2d 294, 661 N.W.2d . We have adopted a two-part standard of review for questions of constitutional fact. Id. We uphold the circuit court's findings of historical or evidentiary fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis. 2d 358, 752 N.W.2d 748. We review independently the application of constitutional principles to the facts found. State v. Ward, 2009 WI 60, ¶ 17, 318 Wis. 2d 301, 767 N.W.2d 236.

B. Right to Counsel

¶ 11. On appeal, Forbush argues that the interrogation by Norlander violated his right to counsel. For-bush contends that he invoked his right to counsel under the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution when he affirmatively requested and received representation of counsel, Attorney Forbush and the Mastantuono Law Office, for these charges. Accordingly, Forbush argues that he was represented by counsel when Norlander questioned him and that the State was aware of this representation. The State contends that Montejo has removed the restrictions on questioning a represented defendant unless he requests counsel at the time of questioning.

¶ 12. I begin my discussion with the framework for the right to counsel that has been employed during interpretations of the United States and Wisconsin Constitutions, in order to show the contours of the right when Forbush was interrogated. I then examine the rule of law established by the Supreme Court's decision in Montejo. Finally, I discuss the current viability of the pre-Montejo standards in Wisconsin and apply the applicable law to Forbush.

a. General framework

¶ 13. The Sixth Amendment guarantees that "the accused shall enjoy ... the Assistance of Counsel for his defence."⁷ Similarly, Article I, Section 7 of the Wisconsin Constitution guarantees that "[i]n all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel."⁸ The right to counsel is a fundamental right guaranteed to criminal defendants in this country. Johnson v. Zerbst, 304 U.S. 458, 462 (1938). The United States Supreme Court has declared that the right to counsel:

is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. ... It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.

Id. at 462-63. The Sixth Amendment "guarantees the accused . . . the right to rely on counsel as a 'medium' between him and the State." Maine v. Moulton, 474 U.S. 159, 176 (1985). "The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice." Id. at 168-69.

¶ 14. It is important to note that "[o]nce the right to counsel has attached and been asserted, the State must of course honor it." Id. at 170. "[T]he prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Id. at 171. In Moulton, the right to counsel was invoked by the appearance of Moulton and his attorney before the Maine Superior Court for Waldo County, where a plea of not guilty to the crimes charged was entered. Id. at 162.

¶ 15. Generally, the right to counsel under the Sixth Amendment and Article I, Section 7 " 'attaches only at or after the time that adversary judicial proceedings have been initiated against [a defendant].' "⁹ United States v. Gouveia, 467 U.S. 180, 187 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688 (1972)); State v. Sanchez, 201 Wis. 2d 219, 226, 548 N.W.2d 69 (1996) (concluding that the Article I, Section 7 right to counsel does not create a right different from the Sixth Amendment right to counsel).

¶ 16. The Sixth Amendment right to counsel extends to all "critical stages" of the criminal proceedings, including the period prior to trial. United States v. Wade, 388 U.S. 218, 227-28 (1967). This is particularly important because pretrial proceedings " 'might well settle the accused's fate and reduce the trial itself to a mere formality.'" Moulton, 474 U.S. at 170 (quoting Wade, 388 U.S. at 224). As a general rule, "[t]he right to counsel under the Sixth Amendment arises after adversary judicial proceedings have been initiated — in Wisconsin, by the filing of a criminal complaint or the issuance of an arrest warrant." Dagnall, 236 Wis. 2d 339, ¶ 30. Once a criminal complaint or an arrest warrant has been issued, the right to counsel attaches. Id., ¶ 32.

¶ 17. Prior to charging, the right to counsel during in-custody police questioning is afforded under the Fifth Amendment and Article I, Section 8 of the Wisconsin Constitution. Both the Supreme Court and this court have held that under the Fifth Amendment, a suspect must unequivocally and unambiguously request counsel before police are required to cease questioning. See Davis v. United States, 512 U.S. 452, 459 (1994); State v. Jennings, 2002 WI 44, ¶ 44, 252 Wis. 2d 228, 647 N.W.2d 142.¹⁰

¶ 18. As with the Fifth Amendment right to counsel, the Sixth Amendment right to counsel that has attached with the filing of a criminal complaint or the issuance of an arrest warrant is not automatically invoked when such a defendant is questioned by the police. Consequently, police questioning of a charged defendant is not automatically prohibited. Rather, to have a valid claim that one's constitutional rights have been violated, a charged defendant must show that he invoked his right to counsel. McNeil v. Wisconsin, 501 U.S. 171, 175-79 (1991).

¶ 19. Dagnall described some circumstances under which a charged defendant may invoke his right to counsel.¹¹ In Dagnall, the Dane County District Attorney's office issued a criminal complaint charging Dagnall with homicide. Dagnall, 236 Wis. 2d 339, ¶ 5. Shortly thereafter, Dagnall was arrested in Florida. Id.

¶ 20. On the same day that Dagnall was arrested, Attorney James H. Conners delivered a letter to the Dane County Sheriffs Department informing them that he had been retained to represent Dagnall on the pending charges, and that he did not want Dagnall questioned by anyone about the homicide. Id., % 6. The next day two detectives from Dane County went to Florida and questioned Dagnall. Id., ¶ 7. They questioned him on three separate occasions in which Dagnall made incriminating statements.¹² Id., ¶¶ 10-13. While talking with the detectives, Dagnall mentioned his attorney more than once. First, prior to questioning, he told the detectives, "My lawyer told me that I shouldn't talk to you guys." Id., ¶ 9. While being transported to the Dane County jail, he also told the detectives that his lawyer "would be mad at him for speaking" to them. Id., ¶ 13. Finally, when the detectives approached Dagnall at the Dane County jail, Dagnall asked whether Attorney Conners knew Dagnall was back in town and when the detectives said that they did not know, the officers recalled that Dagnall said that "it would probably be best to have his attorney present." Id., ¶ 14. The detectives ceased all questioning at that point. Id.

¶ 21. As part of our discussion in Dagnall, we reviewed the modes by which an accused may invoke his right to counsel, thereby mandating the cessation of questioning by the police. After thorough consideration of Supreme Court precedent, we concluded "that a charged defendant in custody who does not have counsel must invoke, assert, or exercise the right to counsel to prevent interrogation." Id., ¶ 48. We went on, however, to distinguish a criminal defendant who has an attorney: "We do not, however, . . . require an accused defendant who has an attorney for the crime charged to show the same diligence as a defendant without an attorney." Id., ¶ 49. We summarized the rule as follows:

The Sixth Amendment right to counsel does not attach until the initiation of criminal charges. It then attaches for those specific charges. The right must be "invoked" by the accused to terminate police questioning before an attorney has been retained ....

After an attorney represents the defendant on particular charges, the accused may not be questioned about the crimes charged in the absence of an attorney. The authorities must assume that the accused does not intend to waive the constitutionally guaranteed right to the assistance of counsel.

Id., ¶¶ 52-53.

¶ 22. We clarified that the right to counsel was not violated when a represented defendant makes an "unguarded outburst" or himself initiates the contact with the police. Id., ¶ 54. Moreover, we pointed out that an additional consideration in this analysis is whether the police have knowledge that the accused has obtained representation. Id., ¶ 51. We explained that "[t]o require an accused person to assert the right to counsel after the accused has counsel would invite the government to embark on a persistent campaign of overtures and blandishments to induce the accused into giving up his rights." Id., ¶ 59.

¶ 23. The question of whether an accused defendant actually invoked his right to counsel was addressed in Smith v. Illinois, 469 U.S. 91 (1984). There, the Supreme Court concluded that the defendant's statement "I'd like to do that[,]" upon being told that he had the right have an attorney present, was sufficient to invoke the right to counsel. Id. at 96. The Court explained that nothing in Smith's invocation "reasonably would have suggested equivocation." Id. at 97. The Court also concluded that statements made after Smith's invocation of his right to counsel could not be used to defeat that right once it was invoked. Id.

¶ 24. As the Court explained by quoting the trial court, "a statement either is such an assertion of the right to counsel or it is not." Id. at 97-98 (brackets omitted). In Davis, the Court relied on the reasoning of Smith to " 'determine whether [an] accused actually invoked his right to counsel.'" Davis, 512 U.S. at 458 (quoting Smith, 469 U.S. at 95). The Supreme Court explained that whether a defendant has invoked his right to counsel is an "objective inquiry." Id. at 458-59. The Court noted that such an objective inquiry " 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.'" Id. (quoting McNeil, 501 U.S. at 178).

¶ 25. The Court in Smith also discussed the difference between invoking the right to counsel and the waiver of that right, concluding that "a valid waiver 'cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.' " Smith, 469 U.S. at 98 (quoting Edwards v. Arizona, 451 U.S. 477, 484 (1981)).

¶ 26. A charged defendant may invoke his Sixth Amendment right to counsel at an extradition proceeding, even though it is a separate proceeding from the criminal action for which extradition is sought. See People v. Maust, 576 N.E.2d 965, 971 (Ill. App. 1 Dist. 1991) (concluding that Maust invoked his Sixth Amendment right to counsel for pending charges when he requested counsel during a hearing where he waived formal extradition); see also State v. March, 2011 WL 332327, at *25 (Tenn. Crim. App. Jan. 27, 2011) (concluding that March invoked his Sixth Amendment right to counsel by retaining counsel before he was returned from California to Tennessee).

b. The effect of Montejo

¶ 27. The State now urges that we overrule DagnalVs conclusion that the waiver of the right to counsel by a charged defendant who has affirmatively invoked his right to counsel by securing the services of an attorney for the crimes charged is invalid unless the defendant initiates the contact with the police. The State's argument is based on the 2009 Supreme Court decision in Montejo; however, Montejo does not require the result that the State seeks. Montejo decided only that courts need not "presume that such a waiver is invalid under certain circumstances." Montejo, 556 U.S. at_, 129 S. Ct. at 2085. The "certain circumstances" of Montejo were a charged defendant for whom the Sixth Amendment right to counsel had attached and who was represented. However, the Court concluded that it should not presume that Montejo had actually invoked his Sixth Amendment right to counsel, simply from the fact that he was represented. Accordingly, the Supreme Court remanded the case to the trial court to determine whether Montejo had actually invoked his Sixth Amendment right to counsel such that the protections of Edwards would apply. Id. at 2091-92.

¶ 28. Montejo was charged with first-degree murder and at his 72-hour hearing, the Louisiana trial court ordered the Office of Indigent Defender to represent him. Id. at 2082. Montejo did not affirmatively request and retain counsel for the crimes charged. That same day, two police detectives took Montejo on an "excursion" to help them locate the murder weapon. Id.

¶ 29. While the exact details were disputed, at some point during the excursion, the police convinced Montejo to write an inculpatory letter of apology to the widow of the victim. Id. Prior to writing the letter, Montejo was read his Miranda warnings. Id. At trial, the letter was introduced over Montejo's objection. Id.

¶ 30. On appeal to the Louisiana Supreme Court, Montejo argued that admission of the letter into evidence was a violation of his Sixth Amendment right to counsel because the Office of Indigent Defender had been ordered to represent him; therefore, he was represented when the police initiated contact with him. Id. at 2082-83. He based his argument on the rule of Jackson. Jackson held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Jackson, 475 U.S. at 636.¹³

¶ 31. The Louisiana Supreme Court rejected Montejo's argument, reasoning that the Jackson rule is not triggered "unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel." Montejo, 556 U.S. at _, 129 S. Ct. at 2083. Since the Louisiana trial court ordered that the Office of Indigent Defender represent Montejo at the 72-hour hearing, and Montejo did not request counsel himself, the Louisiana Supreme Court held that Montejo never "actually requested a lawyer." Id.

¶ 32. Montejo appealed to the United States Supreme Court. The Supreme Court first rejected the Louisiana court's interpretation of the Jackson rule. Id. at 2083-84. The Court pointed out the varying practices throughout the states, noting that "[i]n some two dozen [states], the appointment of counsel is automatic upon a finding of indigency; and in a number of others, appointment can be made either upon the defendant's request or sua sponte by the court." Id. at 2083 (citations omitted). The Court noted that nothing in Jackson indicated that the Court was aware that some states do not require indigent defendants to assert their right to counsel prior to appointment, and, therefore, nothing in Jackson indicated how the Jackson rule would apply to such states. Id. at 2083-84. The Court explained:

The Louisiana Supreme Court's answer to that unresolved question is troublesome. The central distinction it draws — between defendants who "assert" their right to counsel and those who do not — is exceedingly hazy when applied to States that appoint counsel absent request from the defendant.... How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right to choose his counsel, so it is hard to imagine what his "acceptance" would look like, beyond the passive silence that Montejo exhibited.

Id. at 2084 (internal citation omitted).

¶ 33. After rejecting the Louisiana court's interpretation of Jackson, the Court in Montejo discussed the viability of the Jackson rule with regard to appointed counsel by reaffirming those principles that it sought not to disturb. First, the Court noted that "once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." Id. at 2085 (citing Wade, 388 U.S. at ). Second, the Court confirmed that "[interrogation by the State is such a stage." Id. (citing Massiah v. United States, 377 U.S. 201, 204-05 (1964)). Third, the Court pointed out that the "Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent." Id. (citing Patterson v. Illinois, 487 U.S. 285, 292 n.4 (1988)). Fourth, the Court reaffirmed the anti-badgering protections afforded by Edwards.

¶ 34. The court then noted that the "only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain circumstances." Id. The "certain circumstances" referenced in the Court's framing of the issue in Montejo were a charged defendant for whom counsel had been appointed by the court, but for whom the Supreme Court could not determine whether he had actually invoked his right to counsel and the protections that would then flow from Edwards. Accordingly, the Court remanded the case to determine whether the "protections already provided by Edwards" apply. Id. at 2091-92.

¶ 35. The Montejo decision did not conclude that a charged defendant who has affirmatively invoked his Sixth Amendment right to counsel by retaining and receiving the services of a lawyer for the offenses charged must "re-invoke" his Sixth Amendment right to counsel every time law enforcement attempts to interrogate him. To the contrary, the Court cited Massiah with approval, wherein the Court concluded that eliciting testimony of a defendant who has appeared in court with counsel retained for the pending charges was violative of the defendant's Sixth Amendment rights. Id. at 2085; Massiah, 377 U.S. at 206-07.

¶ 36. The Court in Montejo examined the origins of the Jackson rule. It highlighted that the Jackson rule was created by analogy to the Fifth Amendment presumptive rule created in Edwards. The presumptive rule in Edwards mandates that under the Fifth Amendment,

when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards, 451 U.S. at 484-85. Montejo explained that the purpose of the Edwards rule was to " 'prevent police from badgering a defendant into waiving his previously asserted [] rights.'" Montejo, 556 U.S. at_, 129 S. Ct. at 2085 (quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)). Accordingly, it reasoned that the same rationale drives the Jackson rule in the Sixth Amendment context.¹⁴ Id. at 2086. "Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance." Id. at 2087.

¶ 37. The Court first concluded that not requiring the invocation of the right to counsel by a defendant in order to trigger the Jackson presumption, while consistent with the holding in Jackson, was unworkable in the many states that appoint counsel to indigent defendants without requiring an express request. Id. at 2088. Based in part on its determination that Jackson was unworkable, and that the protections the Court believed that Jackson provided were already afforded by Edwards for defendants who personally had retained and received the services of a lawyer for the crimes charged, the Court eliminated the presumptive rule of Jackson. Id. at 2091.

¶ 38. The Court did not change the rule of law set out in Massiah that holds that a charged defendant who has secured and received representation of counsel for the pending charges has invoked his Sixth Amendment right to counsel, thereby preventing the subsequent eliciting of statements by the defendant without the presence of counsel. Massiah, 377 U.S. at 206 (concluding that Massiah was denied the "basic protections of [the Sixth Amendment right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.") The Court also reaffirmed the proscription of police badgering a defendant to change his mind about his invocation of the right to counsel made before police questioning began. Montejo, 556 U.S. at_, 129 S. Ct. at 2085-87.

¶ 39. Here, Forbush invoked his Sixth Amendment right to counsel while in custody in Michigan. He contacted Attorney Forbush and requested that Attorney Forbush represent him with regard to pending charges, and Attorney Forbush did so. The Sixth Amendment's objective standard for determining whether the right to counsel was invoked is fully satisfied by Forbush appearing in Michigan with the attorney that he retained. See Davis, 512 U.S. at 459. There is nothing in the record to show that his invocation of the Sixth Amendment right to counsel was equivocal or that he did not request that Attorney Forbush assist him with the pending charges. That Forbush's first appearance with counsel was at an extradition hearing where he waived formal extradition proceedings does not diminish the fact that he was then a charged defendant and that the attorney who represented him was his brother, an attorney whom he retained. Id.; Maust, 576 N.E.2d at 971.

¶ 40. In some respects, Forbush's circumstances are similar to those in Massiah, in that Massiah had appeared on pending charges with a lawyer and pleaded not guilty. Massiah, 377 U.S. at 201. When law enforcement succeeded in obtaining incriminating statements from him through an intermediary outside the presence of counsel, the Supreme Court held Massiah's statements inadmissible as violative of his Sixth Amendment right to counsel. Id. at 205-06. Here, Forbush's statements were made after he had invoked his Sixth Amendment right to counsel by his appearance in Michigan with an attorney when these charges were pending. The Sixth Amendment circumstances presented by the facts of this case are not the "certain circumstances" addressed in Montejo where there was no determination that Montejo had invoked his Sixth Amendment right to counsel.¹⁵

c. Wisconsin law

¶ 41. In regard to the protections afforded defendants in criminal proceedings, one interpretation of Forbush's argument is that he is not asking us to create a new interpretation of Article I, Section 7 of the Wisconsin Constitution in order to expand its protections beyond those afforded by the Sixth Amendment of the United States Constitution. Rather, Forbush may be asking us to maintain our past interpretations of Article I, Section 7. In order to address this argument, I review past interpretations of Article I, Section 7 that we have applied in cases where an accused's right to counsel is at issue.

¶ 42. Prior to Montejo, we held that "[t]he right to the assistance of counsel is necessary to ensure that a criminal defendant receives a fair trial. ... A criminal defendant in Wisconsin is guaranteed this fundamental right to the assistance of counsel for his defense by both Article I, § 7 of the Wisconsin Constitution and the Sixth Amendment of the United States Constitution." State v. Klessig, 211 Wis. 2d 194, 201-02, 564 N.W.2d 716 (1997) (footnotes omitted). In State v. Polak, 2002 WI App 120, 254 Wis. 2d 585, 646 N.W.2d 845, the court of appeals explained that "[t]he scope, extent and interpretation of the right to assistance of counsel is identical under both the Wisconsin and the United States Constitutions." Id., ¶ 8. Both Klessig and Polak arose after the defendants had asked for and were given the right of self-representation. However, the language that the courts used in reasoning through to their conclusions broadly described the parallel between the rights then guaranteed by the Sixth Amendment and those guaranteed by Article I, Section 7.

¶ 43. In the context of an ineffective assistance of counsel claim, we also have concluded that Article I, Section 7's right to counsel is the same as what we then understood to have been provided by the Sixth Amendment. Sanchez, 201 Wis. 2d at 226. Furthermore, our previous interpretations of the right to counsel in Wisconsin are consistent with the constitutional history of Article I, Section 7 of the Wisconsin Constitution. Although, records from the Wisconsin constitutional conventions do not contain informative debate about the right to counsel in Article I, Section 7,¹⁶ cases decided near the time the Constitution was enacted are instructive. In 1859, in Carpenter v. County of Dane, we concluded that a prosecuting county was responsible for the cost of attorneys court-appointed to defend indigent defendants. Carpenter v. Cnty. of Dane, 9 Wis. 249, 250 (1859). We relied on Article I, Section 7, when we reasoned:

It is true, we find no express provision of law declaring that the county shall pay for services rendered by an attorney appointed by the court, in defending a person on trial for a criminal offense; and yet, it would be a reproach upon the administration of justice, if a person, thus upon trial, could not have the assistance of legal counsel because he was too poor to secure it.

Id. at 250-51. We highlighted the significance of the right to counsel in Wisconsin:

Now, is the right to meet the witnesses face to face, and to have compulsory process to compel the attendance of unwilling witnesses, more important, or more valuable to a person in [jeopardy] of life or liberty, than the privilege of having the benefit of the talents and assistance of counsel in examining the witnesses, or making his defense before the jury? And would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial of the matters with which he was charged, and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him.

Id. at 251. We recognized the importance of having a robust right to counsel under Article I, Section 7, and that to be effective, this right must include the right to have the expense of counsel for indigent defendants covered by the State.

¶ 44. The import of the discussion of the right to counsel under Article I, Section 7 in Carpenter increases given that the opinion was authored by Justice Orsamus Cole. Justice Cole was the Grant County delegate to the 1848 constitutional convention.¹⁷ Justice Cole, consequently, had considerable insight into the intent of the framers. Cf. State v. Hansford, 219 Wis. 2d 226, 238-39 (1998) (explaining that an 1852 case that held a right to a 12-person jury under the Wisconsin Constitution was "particularly significant" given that one of the justices on the unanimous court, although not the author of the opinion, was a delegate to the 1847-48 convention).

¶ 45. In addition to this early history of the right to counsel under Article I, Section 7, careful consideration of underlying constitutional policy supportive of this provision has led us to vigorously protect an accused's right to counsel. The above-cited language from early cases such as Carpenter demonstrates that the longstanding principles relating to the right to counsel are among the most important in protecting an accused. For example, Carpenter pointed out how it would be nothing short of "mockery" to afford the accused the right to compel and confront witnesses, while not providing counsel to assist him. Carpenter, 9 Wis. at 251. Moreover, in County of Dane v. Smith, 13 Wis. 654 (1861), we explained that the defendant and the prosecution are inherently adverse, and stated that it would be "unsafe and hazardous" for the accused to proceed without counsel. Id. at 656-57.

¶ 46. We repeatedly have expressed similar constitutional rationales relating to the issues presented today. First, regarding a defendant's right to the cessation of questioning once he has been formally charged and is represented by counsel, we explained, by comparing the differences in the wording of the Sixth Amendment and Fifth Amendment right to counsel, that:

[t]he Sixth Amendment right to "Assistance of Counsel" is provided explicitly in the text of the Amendment and is designed to assist the "accused" with his or her "defence." The Fifth Amendment right to counsel is not expressly provided. It is a right that exists by implication, a prophylactic devised by courts to protect a person's right, in a criminal case, not to incriminate himself or herself involuntarily.

Dagnall, 236 Wis. 2d 339, ¶ 31. We explained that once the accused has requested and retained counsel, " 'a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect.'" Id., ¶ 49 (quoting Patterson, 487 U.S. at 290 n.3).

¶ 47. The constitutional policy underlying the Dagnall holding emphasizes that once a defendant moves from a "suspect" to an "accused," i.e., once a person has been formally charged, his or her right to counsel attaches. And in Dagnall, the defendant had affirmatively invoked his right to counsel by retaining and receiving the services of counsel. The strong constitutional protections under both the federal and state constitutions for an accused in the circumstances attendant to our Dagnall decision are logical given the competing interests at stake at that point in a prosecution. That is, the State seeks to obtain a confession from the accused while the accused has an interest in guarding against the powers of the State that are focused on convicting him. Moreover, much of the State's investigation will be completed by the time the State formally charges a defendant, and therefore, protections for an accused do not unduly hinder the State's ability to investigate crimes.

¶ 48. In Dagnall, we also relied on the important policy rationale behind preserving the attorney-client relationship. This is a consideration separate and apart from other reasons for the principles we explained. Indeed, "the confidence and trust underlying the attorney-client relationship are foundational to the practice of law and deeply rooted in our law and Professional Rules." Sands v. Menard, Inc., 2010 WI 96, ¶ 53, 328 Wis. 2d 647, 787 N.W.2d 384.

¶ 49. In Sparkman v. State, 27 Wis. 2d 92, 133 N.W.2d 776 (1965), we addressed whether a defendant had a right to appointed counsel at or prior to a preliminary hearing, as a matter of public policy. Sparkman claimed a violation of his right to counsel under the Fourteenth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. Id. at 97. For a variety of reasons, we did not reach the constitutional questions presented. However, we concluded that counsel was required to be appointed for "compelling reasons," such as assisting in preserving the constitutional right to a fair trial, avoiding adverse psychological factors for the defendant, preparing and conducting the cross-examination of government witnesses and preserving testimony. Id. at 99-100. In so concluding, we said that the court's "power and duty were based on common law and supported by arguments from the various provisions of sec. 7, art. I." Id. at 98.

¶ 50. In Dagnall and many other cases cited above, we affirmed the rights that we concluded charged defendants require for fair trials. I now conclude that the fundamental constitutional principles underlying those decisions are just as compelling today as we held them to be in the past. Therefore, they continue to be sound policy for Wisconsin that assures defendants fair trials.

¶ 51. In sum, I affirm the reasoning of Dagnall as controlling on the issue of the right to counsel for a defendant who has affirmatively invoked his right to counsel by requesting and receiving the services of counsel for pending charges. I agree with the State that Montejo did modify Dagnall such that there is no presumption of a Sixth Amendment violation due to police interrogation of a represented defendant when the "certain circumstances" of defendant match those of defendant-Montejo. I now apply these standards to the case at hand.

C. Application

¶ 52. At the September 8, 2008 motion hearing, the parties stipulated that Forbush was represented by counsel at the time Nor lander initiated questioning. This stipulation is consistent with Massiah, Davis and Smith. Stated otherwise, applying an objective standard to determine whether Forbush actually invoked his Sixth Amendment right to counsel by this representation to which the State has stipulated, requires the reasonable conclusion that he did invoke his right to counsel.¹⁸

¶ 53. The parties did not stipulate to whether Norlander knew Forbush was represented. However, the circuit court made a finding of fact that authorities knew Forbush had retained counsel. This finding is not clearly erroneous.¹⁹

¶ 54. In this regard, I reaffirm that authorities must not avoid discovering whether an accused has invoked his Sixth Amendment right to counsel. Dagnall, 236 Wis. 2d 339, ¶ 51. The circuit court concluded that, "In those circumstances where it's known that there has been an attorney and when it's been advised to the DA's Office that there is an attorney, I think it's incumbent on the officers doing the interview to at least ask if there is an attorney representing that defendant. And that wasn't done."

¶ 55. I agree with the circuit court's reasoning. Under the undisputed facts herein presented, Forbush affirmatively invoked his Sixth Amendment and Article I, Section 7 rights to counsel by retaining and receiving the services of counsel for the crimes charged, and law enforcement was aware of that representation when Norlander began to question Forbush. Accordingly, Norlander's questioning violated Forbush's right to counsel afforded by the Sixth Amendment and Article I, Section 7 of the Wisconsin Constitution, from its inception; the circuit court's suppression of Forbush's statements to Norlander was required due to the violation of Forbush's constitutional rights. Nothing in Montejo disturbs Edwards absolute bar to questioning a defendant who has invoked his right to counsel. Accordingly, Montejo is not applicable to the constitutional analysis applicable after Forbush affirmatively invoked the Sixth Amendment right to counsel by retaining and receiving the services of an attorney.²⁰

III. CONCLUSION

¶ 56. I conclude that in the factual context herein presented, Montejo does not sanction the interrogation that occurred. I so conclude because Forbush's right to counsel under the federal or state constitution had attached and was invoked affirmatively by Forbush before the investigator's questioning was initiated. I also conclude that the circuit court's finding that the investigator knew Forbush had secured legal counsel for the pending charges is not clearly erroneous. Furthermore, Forbush was not required to "re-invoke" his right to counsel when the investigator initiated interrogation. Accordingly, we reverse the decision of the court of appeals and affirm the suppression order of the circuit court.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

1 State v. Forbush, 2010 WI App 11, 323 Wis. 2d 258, 779 N.W2d 476.

2 The Honorable Terence T. Bourke of Sheboygan County presided.

3 Chief Justice Shirley S. Abrahamson, joined by Justice Ann Walsh Bradley in an opinion based on reasoning that differs from that employed herein, concurs in concluding that Forbush's Article I, Section 7 right to counsel was violated and that his statements to Norlander must be suppressed; Justice David T. Prosser, in a separate opinion based on reasoning that differs from that employed herein and that employed by Chief Justice Abrahamson, concurs in concluding that Forbush's statements to Norlander must be suppressed; Justice N. Patrick Crooks, Justice Annette Kingsland Ziegler and Justice Michael J. Gableman dissent and have filed dissenting opinions.

4 Miranda v. Arizona, 384 U.S. 436 (1966).

5 Forbush also argued that there was a Fifth Amendment violation, but the circuit court's Fifth Amendment holding is not on appeal.

6 Attorney Mastantuono has continued to represent For-bush throughout this appeal.

7 In full, the Sixth Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Const, amend. VI.

The Supreme Court applied the Sixth Amendment right to counsel to the states through incorporation by the Due Process Clause of the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335 (1963).

8 In full, Article I, Section 7, "Rights of accused," reads:

In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

Wis. Const, art. I, § 7.

9 Cf., Escobedo v. Illinois, 378 U.S. 478 (1964).

10 Jennings also addressed Article I, Section 8 of the Wisconsin Constitution and chose to interpret it consistent with the Supreme Court's interpretation of the Fifth Amendment of the United States Constitution. State v. Jennings, 2002 WI 44, ¶ 40 & n.8, 252 Wis. 2d 228, 647 N.W.2d 142.

11 In Dagnall, the issue of whether Dagnall had invoked his right to counsel under the Wisconsin Constitution was not raised and therefore, this court did not directly address it. But rather, Dagnall interpreted the law relative to a charged defendant through reference to past Sixth Amendment interpretations. State v. Dagnall, 2000 WI 82, ¶ 28 n.7, 236 Wis. 2d 339, 612 N.W.2d 680.

12 The detectives read Dagnall his Miranda warnings on each occasion before they questioned him. Id., ¶¶ 10, 12.

13 The Jackson case consolidated the cases of two separate defendants in two separate crimes, defendant Bladel and defendant Jackson. Michigan v. Jackson, 475 U.S. 625 (1986). Both defendants expressly requested appointment of counsel at their arraignments because they were indigent. Id. at 627-28. Detectives involved in each respective investigation were present at the arraignments and aware of the requests. Id. Nonetheless, in each instance, before the defendant was provided an opportunity to consult with counsel, police initiated further interrogations in which they obtained incriminating statements. Id. Both defendants were read Miranda warnings before they made any statements. Id.

14 The dissent disagreed, arguing that the purpose of the Jackson rule was to preserve the "unique protections afforded to the attorney-client relationship by the Sixth Amendment." Montejo v. Louisiana, 556 U.S._, 129 S. Ct. 2079, 2096 (2009) (Stevens, J, dissenting).

15 Justice Crooks' dissent is based on the unstated, but faulty, premise that Forbush did not invoke his Sixth Amendment right to counsel by his appearance in Michigan with an attorney when these charges were pending. However, there is no reasonable view of the record before us under which one could conclude that Forbush by his unequivocal conduct did not then invoke his Sixth Amendment right to counsel for these charges. See Massiah v. United States, 377 U.S. 201, 201-02 (1964); Davis v. United States, 512 U.S. 452, 458-59 (1994); Smith v. Illinois, 469 U.S. 91, 97-98 (1984). He appeared in Michigan after he had been charged and he appeared with an attorney who is his brother. Scott Forbush was not an attorney selected by someone else. If the dissent were to admit that Forbush invoked his right to counsel, all of the dissent's arguments fall away. Accordingly, I understand why the dissent has not applied the objective test to the record before us, as is required by the Supreme Court; however, it is important for the reader to understand the tactic the dissent has chosen, as well.

16 The Wisconsin Constitution was adopted in 1848. There were two constitutional conventions, one in 1846 and one in 1847-48. State v. Hansford, 219 Wis. 2d 226, 235 n.11, 580 N.W.2d 171 (1998). Review of the debates indicates that on January 22, 1848, the committee on revision and arrangement of the Declaration of Rights changed the Article I, Section 7 right to counsel from "the accused hath a right to be heard by himself and counsel" to "the accused shall enjoy the right to be heard by himself and counsel." Milo M. Quaife, The Attainment of Statehood 714 (1928). This is not instructive for our construction of Article I, Section 7.

17 Supreme Court Justices, Wisconsin Court System, http://wicourts.gov/about/judges/supreme/retired/cole.htm (last visited Apr. 18, 2011).

18 Justice Crooks' dissent asserts that the stipulation gives no support to the conclusion that Forbush invoked his right to counsel. Justice Crooks' dissent, ¶ 130. However, I conclude that the continuation of legal representation in Wisconsin that Forbush began by personally retaining an attorney in Michigan, leads to the reasonable conclusion that Forbush invoked his Sixth Amendment and Article I, Section 7 rights to counsel.

19 Norlander testified that he had reviewed Detective Weber's report prior to questioning Forbush and Detective Weber had been in contact with Scott Forbush, Forbush's attorney.

20 The reader should note that this is not a waiver case, i.e., the question presented is not whether Forbush waived his right to counsel during Norlander's interrogation. This is an invocation case, i.e., the question presented is whether Forbush invoked his Sixth Amendment and Article I, Section 7 rights to counsel.