State v. Ward
Opinions
PATIENCE DRAKE ROGGENSACK, J.
¶ 1. We review an unpublished per curiam decision of the court of appeals,1 which affirmed the circuit court's judgment2 convicting defendant Jennifer L. Ward (Ward) of first-degree reckless homicide. The dispositive issue in this case is whether incriminating statements Ward made during the police investigation subsequent to the death of her seven-week old nephew were not voluntary [312] and therefore, should have been suppressed. We conclude that once in police custody, Ward knowingly, voluntarily and intelligently waived her Fifth Amendment rights to silence and to counsel and that under the totality of the circumstances, her statements were voluntarily made because neither her personal characteristics nor police conduct resulted in coerced statements. Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND
¶ 2. On the morning of December 1, 2004, Ward called 911 to inform police that her seven-week old nephew, who had been left in Ward's exclusive care by the child's parents five days earlier on November 26, 2004, had stopped breathing. Tragically, the child was later pronounced dead. Ward was taken to the hospital along with the child, and once there, was interviewed by Detective Sergeant Glenn Schaepe (Schaepe) of the Oneida County Sheriffs Department.
¶ 3. During this recorded interview, which started at 9:30 a.m., Schaepe repeatedly informed Ward that she was not under arrest, and was free to leave at any time. In addition, hospital personnel came and went at various times throughout the interview. However, Ward's family members were not permitted to enter the room. While Ward was being questioned, she made incriminating statements suggesting that she was responsible for the death of her nephew. Schaepe also told her that her daughter had told him that she had seen Ward shaking the child; however, Ward's daughter saw Ward shake the child only when Ward was administering cardiopulmonary resuscitation (CPR) at the direction of 911 phone staff.
[313] ¶ 4. Later that day, at around 2:30 in the afternoon, Ward accompanied the police to an interrogation room at the police station, where she was informed of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Ward signed a Miranda waiver form, and was then questioned for several hours by Schaepe and his partner, Detective Sergeant Jim Wood (Wood). During this interview, Ward made incriminating statements to the police, further implicating her in the death of her nephew.
¶ 5. While Ward was being questioned, Attorney Jeffrey Jackomino (Jackomino), who had been retained by Ward's husband to represent Ward, appeared at the police station and requested to speak with Ward. Schaepe left the interrogation room, spoke with Jackomino, and informed Jackomino that he would not be permitted to speak with Ward because Ward had not personally invoked her right to counsel. Ward never unequivocally asked for an attorney, and Jackomino was never permitted to see Ward while she was being questioned. The officers also did not inform Ward that her husband was outside of the interrogation room, even though she asked several times about him.
¶ 6. Around 5:20 p.m., the detectives ceased questioning, and Ward was informed that she would be spending the night in jail. Schaepe informed Ward that she would not be permitted to make any phone calls, although at approximately 7:00 p.m., Shaepe instructed the jailer to inform Ward that she would be permitted to call a lawyer if she so requested. Ward never asked to call a lawyer.
¶ 7. The following morning, Ward asked to speak with the detectives. She was brought into the interrogation room, and Schaepe and Wood questioned her a third time. Ward again was given Miranda warnings. [314] She asked several times to speak with her husband, but the officers did not permit her to do so. Ward never asked to speak with a lawyer, however, and she once again made incriminating statements implicating herself in the death of her nephew. Ward was subsequently charged with first-degree reckless homicide.
¶ 8. Prior to trial, Ward moved to suppress her statements. She challenged the interview at the hospital, arguing that her statements were involuntary because she had been in pain at the time and had suffered one or more seizures. Ward also argued that her statements were inadmissible because of Schaepe's incomplete and misleading statement about the circumstances under which Ward's daughter said she had seen Ward shaking the baby.
¶ 9. With respect to her statements at the police station, Ward argued that they were involuntary because (1) she was not initially permitted to make phone calls during the night in jail; (2) she was not informed that her lawyer wanted to speak with her; (3) she was not informed of her husband's status and location; and (4) she was not adequately informed of her right to counsel when she discussed calling a lawyer.
¶ 10. The circuit court denied Ward's suppression motion with respect to all three questioning sessions. Regarding the first session in the hospital, the court concluded that Ward was not in custody because her movement was not restricted; she was told several times that she was not under arrest and was free to leave at any time; and hospital personnel were entering and exiting Ward's room on a regular basis. Because Ward was not in custody, Miranda warnings were not required, and the circuit court merely considered the voluntariness of Ward's statements under the totality of the circumstances.
[315] ¶ 11. The circuit court found that Ward did not possess personal characteristics suggesting that she was particularly susceptible to coercion, and found that Schaepe did not use tactics sufficient to result in coercion. Even though Schaepe did not tell Ward the circumstances under which Ward's daughter said that she saw Ward shaking the baby, the court noted that police deception does not necessarily make subsequent statements inadmissible. As a result, the court held, based on the totality of the circumstances, that Ward's statements were voluntary and therefore admissible.
¶ 12. With respect to the second questioning session, which took place at the police station, the State conceded that Ward was in custody. The circuit court concluded that Ward knowingly, voluntarily and intelligently waived her rights to remain silent and to have counsel present. The court held that Ward's statements made subsequent to that waiver were voluntary because Ward did not possess personal characteristics that made her vulnerable, and the detectives' methods, while aggressive, did not constitute coercion.
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PATIENCE DRAKE ROGGENSACK, J.
¶ 1. We review an unpublished per curiam decision of the court of appeals,1 which affirmed the circuit court's judgment2 convicting defendant Jennifer L. Ward (Ward) of first-degree reckless homicide. The dispositive issue in this case is whether incriminating statements Ward made during the police investigation subsequent to the death of her seven-week old nephew were not voluntary [312] and therefore, should have been suppressed. We conclude that once in police custody, Ward knowingly, voluntarily and intelligently waived her Fifth Amendment rights to silence and to counsel and that under the totality of the circumstances, her statements were voluntarily made because neither her personal characteristics nor police conduct resulted in coerced statements. Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND
¶ 2. On the morning of December 1, 2004, Ward called 911 to inform police that her seven-week old nephew, who had been left in Ward's exclusive care by the child's parents five days earlier on November 26, 2004, had stopped breathing. Tragically, the child was later pronounced dead. Ward was taken to the hospital along with the child, and once there, was interviewed by Detective Sergeant Glenn Schaepe (Schaepe) of the Oneida County Sheriffs Department.
¶ 3. During this recorded interview, which started at 9:30 a.m., Schaepe repeatedly informed Ward that she was not under arrest, and was free to leave at any time. In addition, hospital personnel came and went at various times throughout the interview. However, Ward's family members were not permitted to enter the room. While Ward was being questioned, she made incriminating statements suggesting that she was responsible for the death of her nephew. Schaepe also told her that her daughter had told him that she had seen Ward shaking the child; however, Ward's daughter saw Ward shake the child only when Ward was administering cardiopulmonary resuscitation (CPR) at the direction of 911 phone staff.
[313] ¶ 4. Later that day, at around 2:30 in the afternoon, Ward accompanied the police to an interrogation room at the police station, where she was informed of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Ward signed a Miranda waiver form, and was then questioned for several hours by Schaepe and his partner, Detective Sergeant Jim Wood (Wood). During this interview, Ward made incriminating statements to the police, further implicating her in the death of her nephew.
¶ 5. While Ward was being questioned, Attorney Jeffrey Jackomino (Jackomino), who had been retained by Ward's husband to represent Ward, appeared at the police station and requested to speak with Ward. Schaepe left the interrogation room, spoke with Jackomino, and informed Jackomino that he would not be permitted to speak with Ward because Ward had not personally invoked her right to counsel. Ward never unequivocally asked for an attorney, and Jackomino was never permitted to see Ward while she was being questioned. The officers also did not inform Ward that her husband was outside of the interrogation room, even though she asked several times about him.
¶ 6. Around 5:20 p.m., the detectives ceased questioning, and Ward was informed that she would be spending the night in jail. Schaepe informed Ward that she would not be permitted to make any phone calls, although at approximately 7:00 p.m., Shaepe instructed the jailer to inform Ward that she would be permitted to call a lawyer if she so requested. Ward never asked to call a lawyer.
¶ 7. The following morning, Ward asked to speak with the detectives. She was brought into the interrogation room, and Schaepe and Wood questioned her a third time. Ward again was given Miranda warnings. [314] She asked several times to speak with her husband, but the officers did not permit her to do so. Ward never asked to speak with a lawyer, however, and she once again made incriminating statements implicating herself in the death of her nephew. Ward was subsequently charged with first-degree reckless homicide.
¶ 8. Prior to trial, Ward moved to suppress her statements. She challenged the interview at the hospital, arguing that her statements were involuntary because she had been in pain at the time and had suffered one or more seizures. Ward also argued that her statements were inadmissible because of Schaepe's incomplete and misleading statement about the circumstances under which Ward's daughter said she had seen Ward shaking the baby.
¶ 9. With respect to her statements at the police station, Ward argued that they were involuntary because (1) she was not initially permitted to make phone calls during the night in jail; (2) she was not informed that her lawyer wanted to speak with her; (3) she was not informed of her husband's status and location; and (4) she was not adequately informed of her right to counsel when she discussed calling a lawyer.
¶ 10. The circuit court denied Ward's suppression motion with respect to all three questioning sessions. Regarding the first session in the hospital, the court concluded that Ward was not in custody because her movement was not restricted; she was told several times that she was not under arrest and was free to leave at any time; and hospital personnel were entering and exiting Ward's room on a regular basis. Because Ward was not in custody, Miranda warnings were not required, and the circuit court merely considered the voluntariness of Ward's statements under the totality of the circumstances.
[315] ¶ 11. The circuit court found that Ward did not possess personal characteristics suggesting that she was particularly susceptible to coercion, and found that Schaepe did not use tactics sufficient to result in coercion. Even though Schaepe did not tell Ward the circumstances under which Ward's daughter said that she saw Ward shaking the baby, the court noted that police deception does not necessarily make subsequent statements inadmissible. As a result, the court held, based on the totality of the circumstances, that Ward's statements were voluntary and therefore admissible.
¶ 12. With respect to the second questioning session, which took place at the police station, the State conceded that Ward was in custody. The circuit court concluded that Ward knowingly, voluntarily and intelligently waived her rights to remain silent and to have counsel present. The court held that Ward's statements made subsequent to that waiver were voluntary because Ward did not possess personal characteristics that made her vulnerable, and the detectives' methods, while aggressive, did not constitute coercion.
¶ 13. The circuit court further held, under the United States Supreme Court's decision in Moran v. Burbine, 475 U.S. 412 (1986), that the detectives' failure to inform Ward of Attorney Jackomino's presence outside of the interrogation room did not render her statements inadmissible. In addition, the circuit court concluded that Ward's equivocal statements about calling a lawyer were insufficient to invoke the Fifth Amendment right to counsel. Finally, the court held that the detectives' evasiveness in response to Ward's repeated inquiries regarding her husband did not affect the admissibility of her statements because there is no constitutional right to have anyone other than counsel present during custodial interrogation. In light of all [316] these circumstances, the court concluded that Ward's statements at the second interview were admissible.
¶ 14. In analyzing the third interview, the circuit court began by noting that even though Ward was initially denied the opportunity to make any phone calls subsequent to the second interview, she was later informed by the jailer that she could call a lawyer if she wished. As a result, the court rejected Ward's argument that she was held "incommunicado." The court once again found that, once the third questioning session actually began, Ward was cognizant of her rights before speaking to the police. As a result, Ward's statements were admissible.
¶ 15. Following denial of Ward's motion to suppress, the case proceeded to trial, and a jury convicted Ward of first-degree reckless homicide. Ward challenged her conviction in the court of appeals, arguing that the circuit court had erred by failing to suppress her statements. She advanced many of the same arguments before the court of appeals that she had put forth in the circuit court. The court of appeals affirmed her conviction.
¶ 16. We granted review and now affirm.
II. DISCUSSION
A. Standard of Review
¶ 17. Whether a waiver of the rights to silence and to counsel was knowingly, voluntarily and intelligently made is a question of law for our independent review. State v. Badker, 2000 WI App 27, ¶ 8, 240 Wis. 2d 460, 623 N.W.2d 142. In deciding whether Ward's incriminating statements should have been sup[317] pressed, we must determine whether those statements were made voluntarily. "The question of voluntariness involves the application of constitutional principles to historical facts." State v. Hoppe, 2003 WI 43, ¶ 34, 261 Wis. 2d 294, 661 N.W.2d 407. We uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis. 2d 358, 752 N.W.2d 748 (citing State v. Fonte, 2005 WI 77, ¶ 11, 281 Wis. 2d 654, 698 N.W.2d 594). A finding of historical fact is not clearly erroneous unless "it is against the great weight and clear preponderance of the evidence." State v. Sykes, 2005 WI 48, ¶ 21 n.7, 279 Wis. 2d 742, 695 N.W.2d 277 (quoting State v. Tomlinson, 2002 WI 91, ¶ 36, 254 Wis. 2d 502, 648 N.W.2d 367). We independently review the application of constitutional principles to those facts. Sykes, 279 Wis. 2d 742, ¶ 12 (citing State v. Vorburger, 2002 WI 105, ¶ 32, 255 Wis. 2d 537, 648 N.W.2d 829).
B. General Principles
¶ 18. There are "two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment." Dickerson v. United States, 530 U.S. 428, 433 (2000) (citing Bram v. United States, 168 U.S. 532, 542 (1897); Brown v. Mississippi, 297 U.S. 278 (1936)).3 Ward's statements were voluntary if they were "the product of a free and uncon[318] strained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant's ability to resist." State v. Davis, 2008 WI 71, ¶ 36, 310 Wis. 2d 583, 751 N.W.2d 332 (quoting Hoppe, 261 Wis. 2d 294, ¶ 36). In conducting this inquiry, we look at the totality of the circumstances. Id., ¶ 37.
¶ 19. The totality of the circumstances contemplates balancing the characteristics of the suspect against the type of police tactics that were employed to obtain the suspect's statement. Id. (citing Hoppe, 261 Wis. 2d 294, ¶¶ 38-39). In evaluating the suspect's characteristics, we consider his or her "age, education, intelligence, physical or emotional condition, and prior experience with law enforcement." Id. (same). The more sophisticated and less vulnerable the suspect is, the more likely it becomes that his or her statements were voluntary.
¶ 20. In evaluating the police conduct, we examine "the length of questioning, general conditions or circumstances in which the statement was taken, whether any excessive physical or psychological pressure was used, [319] and whether any inducements, threats, methods, or strategies were utilized in order to elicit a statement from the defendant." Id. (citing Hoppe, 261 Wis. 2d 294, ¶ 39).
¶ 21. The ultimate question of whether Ward's statements to police were voluntarily made is analyzed under the teachings of State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965). However, many of the arguments that Ward makes are phrased in a manner that also appears to question the voluntariness, and therefore the validity, of the waiver of her rights to remain silent and to have counsel provided. Those are rights explained during the Miranda warnings she was given. In order to avoid potential confusion of the two kinds of voluntariness that arise in this case, we separately analyze the validity of Ward's waiver of rights when the Miranda warnings were given and then examine the voluntariness of her statements. In some instances, this will require us to discuss her contentions twice, once in order to analyze her waiver of the rights contained in the Miranda warnings, and a second time to analyze the effect of her contention on the voluntariness of her statements.
C. Police Interviews
1. Personal characteristics
¶ 22. With respect to Ward's personal characteristics, the circuit court found that she was relatively sophisticated and intelligent. This was not a clearly erroneous finding, and is supported by the record. First, Ward was 35 years old at the time of these interviews, and was a high school graduate. Second, the interview [320] transcripts do not suggest any lack of intelligence; Ward evinced a strong command of language. Third, Ward had a prior conviction, and she is the daughter of a police officer. State v. Franklin, 228 Wis. 2d 408, 413, 596 N.W.2d 855 (Ct. App. 1999). For example, the following dialogue occurred when Ward was read her Miranda warnings the first time:
[Schaepe]: . . . [N]umber one. You [] have the right to remain silent. Do you understand that?
[Ward]: Yes.
[Schaepe]: Okay.
[Ward]: You have the right to an attorney.
[Schaepe]: What's that?
[Ward]: If you cannot afford an attorney one will be appointed for you.
[Schaepe]: Oh you know [] 'em pretty well?
[Ward]: Yeah.
That is, Ward herself demonstrated an unprompted understanding of her rights while in custody without having first been told those rights by the police. This indicates that Ward was not particularly vulnerable to police questioning.
¶ 23. Ward's only basis for challenging the voluntariness of her statements based on her own personal characteristics relates to her allegations of suffering seizures and experiencing back pain while at the hospital during the first questioning session. However, the circuit court made a finding of historical fact on this point, noting:
There's no reason to believe that this perceived seizure earlier in the day and some confusion perhaps based on [321] the excitement of the events made her particularly vulnerable to interrogation.... [T]here is really insufficient proof for this court to determine that her back pain or any type of seizure [was] actually [a]ffecting her ability to respond appropriately to Officer Schaepe. There is no real proof that those medical problems made her particularly vulnerable ....
This finding does not go "against the great weight and clear preponderance of the evidence," i.e., it was not clearly erroneous. Sykes, 279 Wis. 2d 742, ¶ 21 n.7 (quoting Tomlinson, 254 Wis. 2d 502, ¶ 36).
¶ 24. Therefore, Ward's physical and mental condition did not cause her to become vulnerable to police interrogation. As a result, none of Ward's personal characteristics favor concluding that her statements were made involuntarily.
2. Police conduct
¶ 25. Ward's remaining basis for suppression lies in her contention that Schaepe's and Wood's police tactics resulted in coerced statements. Ward was interviewed by the police on three occasions. We review each in turn.
a. first interview
¶ 26. Ward concedes that she was not in custody at the hospital, so Schaepe had no obligation to provide Miranda warnings. State v. Brockdorf, 2006 WI 76, ¶ 39, 291 Wis. 2d 635, 717 N.W.2d 657 (holding that the police are not required to give Miranda warnings if the suspect is not in custody). Ward does not argue that a Miranda violation occurred at this time.
[322] ¶ 27. Instead, Ward asserts that Schaepe's conduct rose to the level of coercion because he told her that her daughter had seen her shaking the baby, but he did not tell her all that her daughter said about that event. In addition, Ward argues that she was coerced because her family members were not allowed to enter the hospital room while Schaepe questioned her. The description of the "shaking" episode to which Schaepe referred, but incompletely described, was Ward's daughter describing Ward's CPR on the baby at the direction of 911 staff. As a result, although Schaepe's statement was true, because of its incompleteness, Schaepe misrepresented what Ward's daughter said. However, misrepresentations by police "do not necessarily make a confession involuntary"; rather, they are a relevant factor in the totality of the circumstances. State v. Triggs, 2003 WI App 91, ¶ 17, 264 Wis. 2d 861, 663 N.W.2d 396 (citing United States v. Velasquez, 885 F.2d 1076, 1088 (3d Cir. 1989)); see also Frazier v. Cupp, 394 U.S. 731, 739 (1969) (concluding that while it was relevant that police misrepresented facts to the suspect, those misrepresentations were insufficient to make an otherwise voluntary confession inadmissible); State v. Fehrenbach, 118 Wis. 2d 65, 66-67, 347 N.W.2d 379 (Ct. App. 1984) (concluding "that an interrogator's use of deceit, while relevant, does not by itself make an otherwise voluntary confession inadmissible") (citing Frazier, 394 U.S. at 739).
¶ 28. Even though this misrepresentation is relevant in determining the voluntariness of Ward's statements, it is insufficient to render her statements involuntary. Ward repeatedly denied shaking the baby, and would acknowledge only later that she had "tossed" or "plopped" the child on the bed, actions inconsistent with [323] Schaepe's description of Ward's daughter's statement. In addition, the effect of denying Ward's family members access to Ward's hospital room was minimal, as hospital personnel were frequently entering and exiting the room throughout the interview, and Schaepe told Ward that she could stop the interview at anytime. The rest of the interview at the hospital was relaxed, with Ward and Schaepe at times joking with one another. As a result, the tone of the interview was conversational and indicates that it was not coercive. Accordingly, we conclude, under the totality of the circumstances, that the statements Ward made at the hospital were voluntary.
b. second interview
¶ 29. The second interview took place at the police station. The State has conceded that Ward was in custody during this interview. As a result, prior to interrogating Ward, the detectives were required to administer Miranda warnings. They did so. The following dialogue recounts the reading of those rights, and Ward's subsequent waiver of them:
[Schaepe]: . . . [N]umher one. You[] have the right to remain silent. Do you understand that?
[Ward]: Yes.
[Schaepe]: Okay.
[Ward]: You have the right to an attorney.
[Schaepe]: What's that?
[Ward]: If you cannot afford an attorney one will be appointed for you.
[Schaepe]: Oh you know [] 'em pretty well?
[324] [Ward]: Yeah.
[Schaepe]: Okay. Number two. Anything you say can be used against you in a court of law. Do [you] understand that?
[Ward]: Yes I do.
[Schaepe]: Okay. Number three. You have the right to consult with a lawyer before questioning and to have a lawyer present with you during questioning. Do you understand that?
[Ward]: Does that mean I need a lawyer right now?
[Schaepe]: Well see that's a decision that you make. I can't make those decisions for you. What I'm saying is that we do wanna ask you about the death of [your nephew]. And you are here. We didn't bring you here in handcuffs. We asked you to come here and you were gracious enough to come with us and sit here and uh...
[Ward]: Weill...
[Schaepe]: . . . listen to us.
[Ward]: . . . I'm sorry. This is law enforcement so if I get up and leave I feel like I'm doing something wrong.
[Schaepe]: Oh. Well you can ...
[Ward]: That's me.
[Schaepe]: . . . you can do that right?
[Ward]: What?
[Schaepe]: Ya know get up and leave if that's what you want.
[Ward]: I can?
[325] [Schaepe]: Sure.
[Ward]: Where am I gonna go?
[Schaepe]: (Laughing) Well...
[Ward]: 11 have no ride (laughing).
[Schaepe]: . . . well uh we're ...
[Ward]: 'Cuz I don't know where my husband is.
[Schaepe]: Well a ride could be uh afforded you uh somehow.
[Ward]: Okay.
[Schaepe]: But if we . ..
[Ward]: But I I'm sorry to interrupt. But I told you I wanna try to get this taken care of as quickly and as soon as possible that way everything like you said is fresh.
[Schaepe]: Okay. And [] that's what I understood you to say before. And that's [] why I would like to talk to you yet and uh I understand what you just said. Um in any event you understood that statement I read to you. You have the right to consult with a lawyer before questioning and to have a lawyer present with you during questioning.
[Ward]: Yes.
[Schaepe]: Okay. And number four. You cannot if you cannot afford to hire [] a lawyer one would be appointed to represent you at public expense before or during any questioning if you so wish. Do you understand that?
[Ward]: Yes.
[Schaepe]: Okay. And then number five. If you decide to answer questions now without a lawyer present you [326] have the right to stop the questioning and remain silent at any time you wish and the right to ask for and have a lawyer any time you wish including during the questioning. Okay?
[Ward]: (No verbal response) (Head shake up and down — affirmative).
[Schaepe]: And then I'll just turn this to you and uh there's a Waiver of Rights right below it. Maybe you can just follow along. Okay. I'll read it to ya though.
[Ward]: Sorry.
[Schaepe]: That's alright. I have read or have had read to me the statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
[Ward]: True.
Ward then signed the Miranda waiver form and proceeded to make incriminating statements.
¶ 30. In order to be valid, a Miranda waiver must be knowing, voluntary and intelligent. See Burbine, 475 U.S. at 421. A waiver is knowing, voluntary and intelligent where it is "the product of a free and deliberate choice rather than intimidation, coercion, or deception," and has "been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. Here, Ward verbally, and by her signature, acknowledged that her Miranda waiver was obtained without any promises, threats, pressure or coercion. North Carolina v. Butler, [327] 441 U.S. 369, 373 (1979) ("An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver . . . .").
¶ 31. It is apparent from the above dialogue that Ward's waiver was valid. Ward understood her rights, even reciting them unprompted while Schaepe was administering Miranda warnings to her. Ward understood what she was giving up, and made a conscious decision to make a statement to the police despite her right to remain silent. As a result, we conclude that Ward's waiver of her rights was knowing, voluntary and intelligent.
¶ 32. Nevertheless, Ward attacks the admissibility of statements she made subsequent to her waiver, arguing that those statements were made involuntarily because they were coerced. Dickerson, 530 U.S. at 444 ("The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry."); but see id. ("[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." (quoting Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984))).
¶ 33. Ward's arguments can be broken down as follows: (1) she should have been informed that Attorney Jackomino was waiting to talk to her outside of the interrogation room; (2) she should have been informed about the status and location of her husband, who was also waiting outside; and (3) the police should have asked for further clarification from and given further information to Ward when she made equivocal state[328] ments about contacting an attorney.4 We note that, while Ward makes these arguments in an attempt to show that her statements were not voluntary, these arguments are more appropriately addressed to the validity of her waiver. Nevertheless, under the totality of the circumstances, this police conduct does not rise to the level of coercion, and police coercion is a necessary prerequisite to finding that a defendant's statement was involuntarily made. Hoppe, 261 Wis. 2d 294, ¶ 37 (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)). We therefore reject Ward's arguments in turn.
¶ 34. Ward's first contention, that her waiver was invalid because the police failed to inform her that Attorney Jackomino was waiting outside, is squarely addressed by the United States Supreme Court's decision in Burbine, which we adopted in State v. Hanson, 136 Wis. 2d 195, 213, 401 N.W.2d 771 (1987). In Burbine, the Supreme Court held that the police's failure to inform a suspect that his attorney was attempting to call him, and the police's deliberate deception of the attorney in stating that they would wait for him to arrive before questioning his client, did not affect the suspect's knowing, voluntary and intelligent waiver of his Fifth Amendment rights to remain silent and have counsel present. Burbine, 475 U.S. at 423-24. The Court held that "[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right." [329] Id. at 422. In language directly applicable here, the Court further stated:
Granting that the "deliberate or reckless" withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because respondent's voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid.
Id. at 423-24.
¶ 35. As we noted in Hanson, "the United States Supreme Court has imposed on the police an obligation to inform a suspect of his right to have counsel present at a custodial interrogation.... The Fifth Amendment, however, does not require the police to advise the suspect of the immediate availability of a particular attorney." Hanson, 136 Wis. 2d at 208.
¶ 36. In this case, nothing in the record suggests that Ward was not fully apprised of her rights, and no authority required Schaepe and Wood to tell her that Jackomino was there. Furthermore, as we have already concluded above, the colloquy between Ward and Schaepe as Ward was read her rights indicates that Ward's "voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey." Burbine, 475 U.S. at 424. Accordingly, the fact that the police did not inform Ward that Jackomino was outside did not affect the validity of her waiver.
¶ 37. In addition, this fact did not affect the voluntariness of Ward's subsequent statements. In or[330] der for police conduct to be coercive, "the pressures brought to bear on the defendant by representatives of the State [must] exceed[] the defendant's ability to resist." Davis, 310 Wis. 2d 583, ¶ 36 (quoting Hoppe, 261 Wis. 2d 294, ¶ 36). However, that the police did not tell Ward about Jackomino brought no additional pressures to bear on Ward. Therefore, this lack of knowledge did not affect, much less exceed, her ability to resist police questioning. She simply was unaware of this circumstance. Accordingly, the fact that the police did not inform Ward of Jackomino's presence is not a relevant factor, under the totality of the circumstances, in regard to whether her statements were voluntary.
¶ 38. Ward's second basis for challenging her Miranda waiver, which she also characterizes as a challenge to the voluntariness of her statements subsequent to that waiver, is the detectives' "evasiveness" in response to Ward's questions regarding the status and location of her husband, who, unknown to Ward, was actually waiting outside the interrogation room. Ward now argues that, had she been permitted to speak with her husband, he might have advised her to invoke her rights. However, as we have explained:
Since the right to counsel and the right to remain silent are given by the constitution to the defendant, he alone can exercise those rights. Neither his family nor his attorney are threatened with accusations, nor do they have the defendant's knowledge of the case, including the defendant's knowledge of his own guilt or innocence, nor are they subject to the pain of the defendant's possibly guilty conscience. Therefore, no one but the accused can make the decision to make a statement to the police or to ask for the assistance of counsel in making his decision.
[331] Hanson, 136 Wis. 2d at 213. It was Ward's responsibility, not her husband's, to determine whether she wanted to exercise her Fifth Amendment rights. Id.
¶ 39. A request to speak with family members triggers no constitutional rights in the manner that a request to speak with counsel does, and under Burbine, the police had no obligation to inform Ward that her husband was waiting outside. As a result, Ward's second argument does not affect the validity of her waiver of rights.
¶ 40. We also note that the police's failure to inform Ward of the status and location of her husband did not affect the voluntariness of statements Ward made subsequent to her waiver of rights. That is, failing to give Ward this information did not place additional pressure on her, sufficient to overcome her free will. In order for police conduct to be coercive, it must be shown to be the type of conduct that prevents a defendant's statements from being "the product of a free and unconstrained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation." Davis, 310 Wis. 2d 583, ¶ 36. Ward would have made incriminating statements if her husband had in fact been unavailable, as he very well could have been. Therefore, no coercion occurred due to the detectives' responses to Ward's inquiries regarding her husband. Stated otherwise, the detectives' conduct did not defeat the voluntariness of Ward's statements subsequent to her waiver of rights.
¶ 41. We note that the circumstances here are distinguishable from our decision in State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, where we held that refusing Jerrell's (a juvenile) request to speak with his parents prior to custodial interrogation, [332] under the totality of the circumstances, rendered his subsequent statements involuntary. Id., ¶ 43 (holding that the "failure 'to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel' will be considered 'strong evidence that coercive tactics were used to elicit the incriminating statements'" (quoting Theriault v. State, 66 Wis. 2d 33, 48, 223 N.W.2d 850 (1974))).
¶ 42. The holding in Jerrell was based in substantial part on the suspect's status as a juvenile. Id. Ward is not a juvenile; she is an adult of average intelligence and education, with an above average familiarity with law enforcement procedures. As a result, under the totality of the circumstances, Schaepe and Wood did not have an obligation to contact Ward's husband in order for Ward's statements to be voluntary.
¶ 43. Ward's third argument is that when she asked Schaepe and Wood if she should call an attorney, their failure to further clarify her statements and further explain her rights rendered her waiver of rights invalid, and her subsequent incriminating statements involuntary. However, all Ward had to do was unequivocally ask for an attorney. Had she done so, Schaepe and Wood would have been obligated to immediately cease all questioning. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) ("[A]n 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."); State v. Jennings, 2002 WI 44, ¶ 26, 252 Wis. 2d 228, 647 N.W.2d 142 ("[T]he police must immediately cease questioning a suspect who clearly invokes the Miranda right to counsel at any point during custodial interroga[333] tion."). Ward did not do this. Instead, she asked the detectives what they thought she should do. This is an equivocal statement. We have provided guidance in the past directly on this point:
If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.
Jennings, 252 Wis. 2d 228, ¶ 29 (quoting Davis v. United States, 512 U.S. 452, 459 (1994) (emphasis in original)). That is, Ward's equivocal reference to an attorney, by asking the officers if she should call one, did not require Schaepe and Wood to cease questioning Ward.5 In addition, the officers had no need to clarify Ward's statements regarding whether to call an attor[334] ney. Id., ¶ 32 ("[0]fficers need neither stop an interrogation nor ask clarifying questions when a suspect [335] makes an equivocal request for counsel.") (citing Davis, 512 U.S. at 461).
¶ 44. However, in response to Ward's question, Schaepe did provide Ward with further information about her right to counsel, even though he was not required to do so. Schaepe stated, "Well see that's a decision that you make. I can't make those decisions for you." This is a completely accurate statement of Ward's rights. As we stated in Hanson, "no one but the accused can make the decision to make a statement to the police or to ask for the assistance of counsel in making his decision." Hanson, 136 Wis. 2d at 213. It was up to Ward, not Schaepe or Wood, to decide whether to call an attorney. Since Ward's statements were equivocal, Schaepe and Wood had no obligation to cease questioning or to ask Ward to clarify her statements. Accordingly, this conduct did not affect the validity of Ward's waiver of rights at the second interview.
¶ 45. In addition, the officers' conduct cannot be said to have rendered Ward's subsequent statements involuntary. The officers gave Ward additional information. They were hesitant to speak with her without being certain she wanted to talk with them. Accordingly, she was not coerced and no remedy of suppression is available for these statements. Hoppe, 261 Wis. 2d 294, ¶ 37 (citing Connelly, 479 U.S. at 167) (explaining that police coercion is a necessary prerequisite for a finding of involuntariness).
[336] c. night in jail
¶ 46. Ward's second interview ended at approximately 5:20 p.m. Wood and Schaepe explained to Ward that she would be spending the night in jail because she had implicated herself in the death of her nephew. They also told Ward the following:
[Schaepe]: And what we're gonna do also just so you know is your phone calls are gonna be restricted at this time. So I'm gonna tell them that. And then tomorrow morning we'll assess that and [] see if we can lift that or not. But right now we're in the process of investigating and we're gonna be searching your house. And we don't want any interference with that type of activity so we are restricting your phone calls until tomorrow and then we'll reassess. Okay?
[Ward]: And that means not making any phone calls?
[Schaepe]: Right.
Ward argues that because she could not make any phone calls, she was held "incommunicado" and denied her right to counsel.
¶ 47. In response, the State notes that at approximately 7:00 p.m., Schaepe told the jailer to tell Ward that she could call a lawyer if she wanted. Ward argues that there is no evidence in the record to support this. However, the circuit court made the following finding of fact:
[0]fficer Schaepe told the jailer about 7 o'clock on the evening of December 1st that of course if [Ward] wanted to call an attorney she could call an attorney, and the evidence here on record is that that information was communicated to her. So on the night of December 1st, [Ward] was reminded that she could call an attorney....
[337] ¶ 48. Ward argues that this finding is clearly erroneous because there is no evidence that Ward was informed by the jailer that she could call an attorney. We disagree. On the morning of December 2, at the start of the third interview, Ward and Schaepe had the following exchange:
[Schaepe]: The only restrictions that you've had up until this point is calling.out to make a personal phone call. Um if you want an attorney you can call an attorney and that's what it says there. At any time you can call an attorney. And that's why the jailer came to you yesterday as well and said that um you don't have any you can't have any personal phone calls out but you can have a phone call to your attorney if you'd like. That's what he told you last night too.
[Ward]: And I didn't have one. And I didn't know who to call. And usually they're gone by that time.
When Schaepe recalled to Ward that the jailer had told her that she could call an attorney if she wanted, Ward did not deny that this was true, and her statements imply that the jailer did tell her she could make a call to a lawyer. Therefore, the circuit court's finding does not go "against the great weight and clear preponderance of the evidence"; i.e., it is not clearly erroneous. Sykes, 279 Wis. 2d 742, ¶ 21 n.7.
¶ 49. Satisfied with the circuit court's findings of fact, we note that the concept of "incommunicado" detention, to which Ward argues she was subjected, may contemplate both that visitors, such as family members and/or counsel, are prevented from seeing or contacting the suspect, and that the suspect is prohibited from communicating with individuals other than the police. See, e.g., Davis v. North Carolina, 384 U.S. 737, 745 [338] (1966) (noting that a defendant was held incommunicado where there was an instruction not to permit anyone access to Davis and not to allow him to communicate with others); Payne v. Arkansas, 356 U.S. 560, 563 (1958)6 (noting incommunicado status where defendant's family members and lawyer were not permitted to visit him and he asked to make a phone call but was not allowed to do so).
¶ 50. However, in Burbine, which provided guidance on the application of Miranda, the United States Supreme Court explained that, where the dictates of Miranda are otherwise followed, the only impermissible aspect of incommunicado questioning is that which prevents a suspect from speaking with those to whom he or she has a constitutional right to speak.7 [339] Burbine, 475 U.S. at 433 n.4 (noting that denying visitors the right to contact an individual in custody who has been given the Miranda warnings will not require suppression because the Miranda decision itself "embodies a carefully crafted balance designed to fully protect both the defendant's and society's interests," and " 'the interrogation must cease until an attorney is present' only '[i]f the individual states that he wants an attorney' " (quoting Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975) (emphasis in Burbine)). That is, preventing others from contacting the suspect has no impact on the suspect's ability to waive his or her rights or on his or her choice to speak voluntarily with the police. Id. at 422.
¶ 51. The Burbine court reasoned that "[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on [340] the capacity to comprehend and knowingly relinquish a constitutional right." Id. That is, although the accused has a Fifth Amendment right to be free from compelled self-incrimination, his or her decision to waive that right and to speak voluntarily with the police cannot be affected by events of which he or she has no knowledge. Id. Therefore, if the suspect is unaware that the police have prevented someone from making contact, this fact has no bearing on the suspect's waiver of rights or the voluntariness of his or her statements. Once Miranda has been followed, "full comprehension of the rights to remain silent and request a [lawyer] are sufficient to dispel whatever coercion is inherent in the interrogation process." Id. at 427.
¶ 52. Based on these principles and the circuit court's findings, we conclude that Ward is correct in asserting that she was held in a constitutionally impermissible status during the hour and 40 minutes that she could not contact a lawyer, if she had asked to do so. However, preventing others from contacting Ward cannot have affected her waiver of rights or the voluntariness of her statements, because she was not aware that anyone was trying to contact her. Id. at 422. Furthermore, as soon as Ward was informed by the jailer that she could contact a lawyer, her constitutionally impaired status ceased and she was once again free to speak with a lawyer if she requested to do so. Id. at 433 n.4. And finally, this is not a case where Ward was held by the police for an extended period of time. She agreed to accompany the police to the station in the afternoon of the day that her nephew died; she was kept overnight; and she was charged the next day.
¶ 53. However, even though Ward was allowed to call a lawyer, she made no attempt to do so at any time. [341] Even assuming that Ward would have attempted to contact an attorney between 5:20 p.m. and 7:00 p.m. on December 1, the remedy for her brief deprivation of the right to contact a lawyer would be suppression of any incriminating statements that she made during that time. See Darwin v. Connecticut, 391 U.S. 346, 349 (1968) (per curiam) (holding that prolonged "incommunicado" interrogation rendered confession made during that period involuntary and inadmissible); see also Haynes v. Washington, 373 U.S. 503, 514 (1963) (holding that "incommunicado detention" rendered confession made during that period involuntary). However, Ward made no statements, much less incriminating statements, during the hour and 40 minutes that she may have been unable to contact an attorney had she so desired.
¶ 54. We acknowledge that Darwin and Haynes did not expressly address the question of whether a period of impermissible detention could nevertheless result in the suppression of incriminating statements obtained subsequent to that detention. However, even if it could, Ward's conduct at the third interview in this case (which we discuss below), in personally requesting to speak with the officers, demonstrating a clear willingness to talk once the interview began, and subsequently waiving her rights to silence and to counsel, demonstrate that, under the totality of the circumstances, her brief period of impermissible detention did not affect the voluntariness of statements she made subsequent to that detention. That is, because it was for such a brief period of time, it did not rise to a level of coercion such that statements that she made the next day should have been suppressed.
¶ 55. In his dissent, Justice Crooks argues, both expressly and impliedly, that we should reject the United States Supreme Court's holding in Burhine and [342] conclude that the police conduct here rendered both Ward's waiver invalid and her subsequent statements involuntary. Justice Crooks' dissent, ¶¶ 80, 85, 101 & n.15. In response, we note that in State v. Hanson, which is not a recent case and which demonstrates that many of the arguments presented by Justice Crooks are not new, six justices took the opportunity to expressly adopt the holding in Burbine. Hanson, 136 Wis. 2d at 213. The Hanson court's logic in doing so applies with equal force today:
We do not believe that the suspect's knowledge of the location of a particular counsel can affect the intelligent waiver of his constitutional rights as described in Miranda warnings. Since the knowledge of the location of counsel adds no constitutional rights, does not alter the facts of the case as the suspect knows them, and does not give rise to any coercive influence by the police, such knowledge is not relevant to the suspect's voluntary decision to waive his rights. Although a suspect who was ready to waive his rights might change his mind when told an attorney was waiting to see him, the critical factor would be the convenience of seeing the attorney, not the intelligent perceived need for legal counsel. Since the convenience of the defendant is not constitutionally protected, the location of a particular attorney is not constitutionally required information.
If this information were required, distinctions between suspects would unfairly develop depending on whether third persons were able to engage the services of an attorney. A new area of law would develop regarding actions of police in particular fact situations, i.e., was the attorney in the building, was the attorney on the telephone, was the attorney on his way to the building, was the attorney not immediately available but would be by a definite time, would a substitute attorney satisfy the requirement. Another line of cases [343] could develop around who requested such representation: the accused's family, friends, or perhaps a criminal accomplice, or the attorney himself who has a reduced caseload. Would the police be required to inform the accused no matter who was seeking representation for the accused, even if such representation is sought out of the self-interest of the party seeking the representation?
An infinite number of circumstances could be. envisioned only to create a new extension of the exclusionary rule. The Supreme Court in Burbine found Miranda sufficient protection of the suspect's constitutional rights before interrogation and found no need to further extend the exclusionary rule. We believe Burbine to be a reasonable consideration of the limit to which Miranda will be extended and that the Wisconsin Constitution does not require greater protection. Since the right to counsel and the right to remain .silent are given by the constitution to the defendant, he alone can exercise those rights. Neither his family nor his attorney are threatened with accusations, nor do they have the defendant's knowledge of the case, including the defendant's knowledge of his own guilt or innocence, nor are they subject to the pain of the defendant's possibly guilty conscience. Therefore, no one but the accused can make the decision to make a statement to the police or to ask for the assistance of counsel in making his decision. Since both the rights and the person the rights are granted to, the accused, are the same under both the federal and Wisconsin Constitutions, there is no logical reason to find that someone other than the accused could exercise those rights under the Wisconsin Constitution.
Id. at 211-13. To accept Justice Crooks' suggestion would be to overrule Hanson and the two decades of established Wisconsin precedent that have followed it. We decline to do so. Instead, we take this opportunity to [344] emphasize that Hanson is still good law in this state. Article I, Section 8 of the Wisconsin Constitution provides the same protections prior to charging a suspect as does the Fifth Amendment to the United States Constitution. Id.
d. third interview
¶ 56. We now address Ward's challenge to the admissibility of incriminating statements she made at the third interview on the morning of December 2. As was the case with respect to the second interview, Ward contends that her waiver of the right to counsel was not valid and her subsequent statements were inadmissible because she did not give them voluntarily. Her argument in this regard is based on the officers not permitting her to consult with her husband about whether to contact an attorney. As noted above, Ward also argues that the nature of her detention the previous night made her incriminating statements at the third interview involuntary. However, we note that it was Ward, not the officers, who initiated the third interview. In addition, the following dialogue demonstrates how Ward was once again given Miranda warnings, and once again waived her rights, prior to making any incriminating statements:
[Schaepe]: Well I'll read these uh five statements to you again uh Jennifer. And if you don't understand any of 'em let me know. Uh if you say yes that you do understand I'll put a little checkmark in front of them. And then there's a Waiver of Rights below that and I'll have you just read it to yourself because uh I had already read that to you yesterday. And then uh I would ask if you're willing to talk to us just to sign it here. And uh then we'll ask ya a few questions and you can tell us what else you know.
[Ward]: Oh question.
[345] [Schaepe]: Uh huh (affirmative).
[Ward]: If I wasn't willing to talk to you why would we be in here?
[Schaepe]: That's [] a good point.
[Wood]: That is a good point.
[Schaepe]: Right. You're here because you wanted to talk to us. So let me just get through this and then we...
[Ward]: Okay.
[Schaepe]: . . . can discuss it.
[Ward]: You said any questions ask.
[Wood]: Yeah...
[Schaepe]: No.
[Wood]: . . . that's a good one.
[Schaepe]: Yeah. I you got me on that one.
[Wood]: (Laughing).
[Schaepe]: Number one. You do have the right to remain silent. Do you understand that?
[Ward]: Yes.
[Schaepe]: Okay. Number two. Anything you say can be used against you in a court of law. Do you understand that?
[Ward]: Yes.
[Schaepe]: Number three. You have the right to consult with a lawyer before questioning and to have a lawyer present with you during questioning. Do you understand that?
[346] [Ward]: Yes. But I at the time was like okay I didn't know who to call.
[Schaepe]: Well and uh there's a phonebook with uh plenty of attorneys uh in the book. Uh Rhinelander has loads of 'em. So uh ya know if you want an attorney uh ya know you can look in the phonebook if you'd [] like or pick one out or if ya know one or what have you. But I will ask you this uh and tell you this that you do have the right to consult a lawyer before questioning and to have a lawyer present with you during questioning. Do you understand that?
[Ward]: Yes I do. And should I have?
[Schaepe]: Well that's a decision that that you can make. Um the Waiver of Rights we'll go over these again. If you understand these five statements that I read to you you can make that decision if you want to talk to us or not. I mean but it's entirely up to you. All we can do is explain what this [] is. Uh and then you make the decision of whether you wanna talk to us or not.
[Ward]: Well I do wanna talk to you.
[Schaepe]: Number four. If you cannot afford to hire a lawyer one would be appointed to represent you at public expense before any questioning if you so [] wish. Do you understand that?
[Ward]: Yes.
[Schaepe]: Okay. And then number five. If you decide to answer questions now without a lawyer present you have the right to stop the questioning and remain silent at any time you wish and the right to ask for and have a lawyer anytime you wish including during the questioning. Do you understand that?
[Ward]: Yes.
[347] [Schaepe]: Okay.
[Ward]: Well this is why I wanted to call my husband yesterday to ask him what I should do.
[Schaepe]: Oh. You wanted his advice. Well um we're asking you now. I mean you're the one that's gonna have to make that decision at this point in time. Um so that's the Waiver um ya know here maybe you oughta hold it. You could read it better. This is the Waiver of Rights right here. If you wanna read that to yourself and then decide on whether you wanna talk to us. That's up to you.
[Schaepe]: The only restrictions that you've had up until this point is calling out to make a personal phone call. Um if you want an attorney you can call an attorney and that's what it says there. At any time you can call an attorney. And that's why the jailer came to you yesterday as well and said that um you don't have any you can't have any personal phone calls out but you can have a phone call to your attorney if you'd like. That's what he told you last night too.
[Ward]: And I didn't have one. And I didn't know who to call. And usually they're gone by that time.
[Schaepe]: Okay. Well now we're here and it's ten o'clock ten thirty ten twenty-five in the morning. Um. ..
[Ward]: Actually what time is it?
[Schaepe]: Ten twenty-five.
[Ward]: Okay.
[Schaepe]: And there's uh attorneys in their offices at this time. So uh the question is do you wanna talk to us at this time without an attorney or not? That's uh that's up to you.
[348] [Wood]: And that is ya know that's your personal decision Jennifer. I mean that's ...
[Schaepe]: We cannot make that decision for you.
[Wood]: Yeah. I understood this morning that you wanted to talk to us to resolve something. Or at least that's what I thought you were contacting us for.
[Ward]: Yes.
[Wood]: Okay.
[Wood]: And I think before we talk anymore you need to make a decision on that form. 'Cuz we really can't talk to you about things unless uh you make that decision.
[Ward]: Not even what we discussed yesterday? [Wood]: Um um (negative).
[Ward]: Why is that? 'Cuz I already .. . excuse me.
[Wood]: It today's a different day though.
[Ward]: You have to do it for every day you talk to somebody?
[Wood]: Yeah. If you're in .. .
[Ward]: Oh. That's too much paperwork.
[Wood]: ... if you're in custody. Well it is but I mean again it's an important issue.
[Schaepe]: The question is do you wanna waive those Rights that I had read to you and talk to us without an attorney present. That is your decision to make.
[Ward]: Yeah. Because what I'm saying to you is the truth anyway.
[349] At this point Ward signed the waiver form and questioning began. Ward then made further statements implicating her in the death of her nephew.
¶ 57. We resolve whether Ward's waiver of rights at the third and final questioning session was knowing, voluntary and intelligent in much the same way we resolved the validity of her waiver at the second questioning session. Again, it is apparent that Ward's waiver "was the product of a free and deliberate choice rather than intimidation, coercion, or deception," and was "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Burbine, 475 U.S. at 421. In fact, Ward's desire to waive her rights was so apparent that she stated, "If I wasn't willing to talk to you why would we be in here?" Furthermore, at this third session, the detectives repeatedly emphasized to Ward the importance of counsel, yet she did not invoke that right. Schaepe and Wood told her that attorneys' offices were open and that she could call one immediately. Ward elected not to do so. Ward apparently saw no need to call an attorney, because, as she stated, "what I'm saying to you is the truth anyway."
¶ 58. Now, Ward complains to us that her waiver was not valid because she wanted to talk to her husband in order to decide whether to invoke her right to counsel, and the detectives did not permit her to do so. Again, we emphasize that the decision whether to invoke the right to counsel is personal to the suspect, and cannot be made by anyone else. Hanson, 136 Wis. 2d at 213. The officers had no constitutional obligation to permit Ward to speak to her husband. Their only obligation was to permit Ward to speak to an attorney if she asked to do so. All she had to say was, "I [350] want a lawyer." Ward never did this. Instead, she again asked the detectives if they thought she should get an attorney, but under Hanson, that decision was Ward's alone, id., and under Jennings, the detectives had no obligation to cease questioning or ask Ward to further clarify her remarks, Jennings, 252 Wis. 2d 228, ¶ 32. Accordingly, we conclude that Ward's waiver was knowing, voluntary and intelligent.
¶ 59. In addition, we conclude that Ward's statements made subsequent to her waiver of rights were obtained voluntarily and are admissible. In determining the voluntariness of Ward's statements, we note that the officers' refusal to permit Ward to speak with her husband was not coercive because it did not prevent her from speaking with "a free and unconstrained will, reflecting deliberateness of choice." Davis, 310 Wis. 2d 583, ¶ 36. Furthermore, any effect that Ward's brief deprivation of the right to counsel the previous night may have had on the voluntariness of her subsequent statements is negated by her initiating the interview, her obvious willingness to talk and her clear waiver of rights. As Ward stated at this very interview prior to incriminating herself, "If I wasn't willing to talk to you why would we be in here?" Accordingly, Ward's statements were voluntary.
3. Cumulative effect
¶ 60. Ward's final argument is that the totality of the circumstances test for the voluntariness of her statements contemplates that all three questioning sessions should be evaluated as a single event. She asserts that the combined effect of police conduct constituted coercion sufficient to render all of her statements involuntary.
[351] ¶ 61. We reject this argument. It appears that Ward is attempting to have the voluntariness of her statements at these questioning sessions evaluated without any consideration for the validity of her waiver of the rights to silence and to counsel. However, as the Supreme Court has noted, "cases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." Dickerson, 530 U.S. at 444 (quoting Berkemer, 468 U.S. at 433 n.20). Accordingly, Ward's waiver of rights and her conversational demeanor during those waivers, where she completed the officer's statements with an accurate recitation of the right he was expressing, is part of the context in which we evaluate Ward's assertion that her subsequent incriminating statements were not voluntary. See id.
¶ 62. To hold otherwise would alter the principles courts have explained that guide police conduct to assure that a suspect's rights are respected. When the courts set out principles that explain constitutional rights, police are better able to understand what they can and cannot do when interrogating suspects. Fare v. Michael C., 442 U.S. 707, 718 (1979) (noting that, in the context of questioning a juvenile, the current system of rigid specificity in regard to what is appropriate police conduct has the virtue of informing police what they may do in conducting custodial interrogation). These principles create a balance that protects the rights of individuals, while at the same time permitting the police to do their job.
¶ 63. We perceive no basis for Ward's contention that the sequence of permissible police actions that occurred here, when combined, renders her statements [352] inadmissible under the totality of the circumstances. We understand Ward's argument to be that the combination of circumstances to which she was subjected resulted in coerced statements, even if none of these circumstances were individually sufficient to result in coercion. See People v. Washington, 413 N.E.2d 170, 174 (Ill. App. Ct. 1980) (reviewing whether in a Sixth Amendment right to counsel context a "combination of circumstances, even if they would not be coercive if taken singly may, in combination, produce intolerable pressure").
¶ 64. Police coercion is a necessary predicate to a finding that a confession is not voluntary. Hoppe, 261 Wis. 2d 294, ¶ 37 (citing Connelly, 479 U.S. at 167); see also Withrow v. Williams, 507 U.S. 680, 708 (1993) (holding that police coercion is a "crucial element" to a determination of involuntariness). The only instances of potentially improper police conduct in this case were Schaepe's incomplete representation of Ward's daughter's description of Ward shaking the baby, and the brief deprivation of her right to contact an attorney during her night in jail, if she had requested to do so. We have concluded that those factors did not cause Ward to incriminate herself. See supra ¶¶ 26, 53-54. Throughout the interviews, all of the detectives' conduct either was expressly authorized by principles set forth by the United States Supreme Court in the waiver context, or did not constitute factors sufficient under the totality of the circumstances to undermine the voluntariness of Ward's incriminating statements. Therefore, while relevant, Schaepe's omission and Ward's brief deprivation of the right to counsel are "insufficient... to make [] otherwise voluntary confession^] inadmissible." Frazier, 394 U.S. at 739. We do not [353] accept Ward's contention that the combination of police conduct rendered her waivers invalid or her statements involuntary.
¶ 65. Furthermore, Ward's assertion would detrimentally affect the waiver analysis in that her argument represents a dramatic step away from the clear principles established by the United States Supreme Court and a return to the type of fuzzy distinctions that have been rejected in the past because they made it all but impossible for the police to do their job and for suspects to understand their rights. See, e.g., Charles D. Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 113, 123-26 (1998) (noting that pre-Miranda standards were impossible to apply due to the nearly infinite variety of circumstances in which interrogation might take place, and bright-line rules, which would make the job of the police manageable, while effectively informing suspects of their rights, were necessary); Stephen J. Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 869-72 (1981) (criticizing the pre-Miranda standard for confessions, noting its complete failure to provide either protection to suspects or guidance to the courts and the police).
¶ 66. We note that the police generally have been successful operating under the system of principles pertaining to waiver of rights that were put in place by Miranda, Edwards and Burbine. The Fifth Amendment rights to remain silent and to have counsel provided are now firmly rooted in the public consciousness. Furthermore, as has been recognized,
[t]he years after Miranda have not diminished the need for bright-line rules. Abandoning the original vision of Miranda leaves courts and police to struggle with case-by-case determinations of voluntariness. In contrast, by complying with Miranda, officers largely avert [354] the need for a voluntariness inquiry. In the overwhelming majority of cases, a court will find that a suspect who received proper warnings and waived his or her Fifth Amendment rights made a voluntary statement. Furthermore, apart from the notion that a fully informed waiver usually negates a claim of coercion, Miranda has made it easier to resolve a motion to suppress a statement under the Fourteenth Amendment. Because courts typically view an officer's violation of Miranda as a significant indicator of a coerced statement under the totality of the circumstances analysis, complying with Miranda bolsters a prosecutor's position under the Fourteenth Amendment.
Weisselberg, Saving Miranda, 84 Cornell L. Rev. at 166. To argue for a return to the situation that existed prior to the promulgation of these clear principles, essentially the result of accepting Ward's approach, would be to argue for a return to a scheme which provides no real guidance.
¶ 67. Because the police conduct in this case was lawful, we cannot conclude that putting it all together results in Ward's waiver of rights being invalid or her subsequent statements being coerced. Accordingly, we affirm the decision of the court of appeals, which affirmed the circuit court's judgment convicting Ward of first-degree reckless homicide.
III. CONCLUSION
¶ 68. The dispositive issue in this case is whether incriminating statements Ward made during the police investigation subsequent to the death of her seven-week old nephew were not voluntarily made and should have been suppressed. We conclude that once in police custody, Ward knowingly, voluntarily and intelligently waived her Fifth Amendment rights to silence and to [355] counsel and that under the totality of the circumstances, her statements were voluntarily made because neither her personal characteristics nor police conduct resulted in coerced statements. Accordingly, we affirm the decision of the court of appeals.
By the Court. — The decision of the court of appeals is affirmed.
Footnotes
2009 WI 60 (State v. Ward) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.