State v. Adrean L. Smith

2014 WI 88

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1653-CR & 2012AP520-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Carlos A. Cummings,
Defendant-Appellant-Petitioner.
------------------------------------------------
State of Wisconsin,
Plaintiff-Respondent,
v.
Adrean L. Smith,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 346 Wis. 2d 279
(Ct. App. 2013 – Unpublished)
-----------------------------------------------
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 346 Wis. 2d 280, 827 N.W.2d 929
(Ct. App. 2013 – Unpublished)

OPINION FILED: July 24, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 19, 2014

SOURCE OF APPEAL:
COURT: Circuit/Circuit
COUNTY: Portage/Milwaukee
JUDGE: Thomas T. Flugaur/Thomas P. Donegan

JUSTICES:
CONCUR/DISSENT: PROSSER, BRADLEY, JJ., concurs in part, dissents
in part. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For defendant-appellant-petitioner Carlos A. Cummings,
there were briefs by David R. Karpe, Madison, and oral argument
by David R. Karpe.
 For the plaintiff-respondent, the cause was argued by Jacob
J. Wittwer, assistant attorney general, with whom on the briefs
was J.B. Van Hollen, attorney general.

For defendant-appellant-petitioner Adrean L. Smith, there
were briefs by Dustin C. Haskell, assistant state public
defender, and oral argument by Dustin C. Haskell.

For the plaintiff-respondent, the cause was argued by
Thomas J. Balistreri, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.

2
3
 2014 WI 88
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2011AP1653-CR & 2012AP520-CR
(L.C. Nos. 2008CF418 & 2010CF5837)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. JUL 24, 2014
Carlos A. Cummings, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.

State of Wisconsin,

Plaintiff-Respondent,

v.

Adrean L. Smith,

Defendant-Appellant-Petitioner.

REVIEW of decisions of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of

two per curiam decisions of the court of appeals, State v.

Cummings, No. 2011AP1653-CR, unpublished slip op. (Wis. Ct. App.

Jan. 10, 2013), and State v. Smith, No. 2012AP520-CR,
unpublished slip op. (Wis. Ct. App. Jan. 23, 2013). In Cummings
 Nos. 2011AP1653-CR & 2012AP520-CR

the court of appeals affirmed the orders of the Portage County

Circuit Court,1 denying Carlos A. Cummings' ("Cummings") motion

to suppress and motion for postconviction relief. In Smith the

court of appeals affirmed the order of the Milwaukee County

Circuit Court2 denying Adrean L. Smith's ("Smith") motion to

suppress.

¶2 Both Cummings and Smith argue that they unequivocally

invoked the right to remain silent prior to making incriminating

statements to police.3 Both Smith and Cummings argue that, as a

result, their incriminating statements should have been

suppressed. Cummings separately argues that the circuit court

should have granted his motion for postconviction relief because

the sentence imposed on him was unduly harsh.

¶3 The State argues that neither Cummings nor Smith

unequivocally invoked the right to remain silent, and further

argues that Cummings' sentence was not unduly harsh.

¶4 We conclude that neither Cummings nor Smith

unequivocally invoked the right to remain silent during their
interrogations. As a result, the circuit court properly denied

each defendant's motion to suppress the incriminating statements

1
The Honorable Thomas T. Flugar presided.
2
The Honorable Thomas P. Donegan presided.
3
We note at the outset that in both cases, the asserted
invocations of the right to remain silent occurred after the
suspects had been taken into custody, had received Miranda
warnings, had waived their Miranda rights, and were being
interrogated by police. See Miranda v. Arizona, 384 U.S. 436
(1966).

2
 Nos. 2011AP1653-CR & 2012AP520-CR

made to police. We also conclude that Cummings' sentence was

not unduly harsh. We therefore affirm the court of appeals in

both cases.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. State v. Cummings

¶5 On November 18, 2008, police responded to a reported

shooting at a park in Stevens Point, Wisconsin. On arriving at

the scene, officers found the victim, James Glodowski

("Glodowski"), conscious and responsive despite having been shot

a number of times in the head and upper body.4 Glodowski told

police that he had been shot by a woman named "Linda," later

identified as Linda Dietze ("Dietze").

¶6 Glodowski explained that Dietze had called him and

asked him to meet her at the park. Dietze had told Glodowski

during the call that she wanted to repay $600 that she had

previously borrowed from him. Dietze also told Glodowski that

she had video evidence of an affair between his wife, Carla

Glodowski ("Carla"), and a man named "Carlos." When Glodowski
arrived at the park, Dietze handed him the videotape, pulled out

a .22 caliber pistol, and shot him. Before fleeing the scene on

foot, Dietze told Glodowski that she was sorry for shooting him

but that it was his wife's fault.

¶7 As part of their investigation, Stevens Point police

officers interviewed Cummings on the afternoon of the shooting.

4
As a result of the shooting, Glodowski lost the use of his
eye. He continues to have a bullet lodged near his brain stem
that cannot be removed surgically.

3
 Nos. 2011AP1653-CR & 2012AP520-CR

During his interview with police, Cummings denied any knowledge

or involvement in the shooting, though he admitted that he was

friendly with both Dietze and Carla. At this point, Cummings

had not been arrested, nor had he been advised of his Miranda

rights. See Miranda v. Arizona, 384 U.S. 436 (1966). Cummings

was subsequently released.

¶8 Later that evening, police located Dietze at her

apartment and arrested her. Dietze admitted to shooting

Glodowski, but told police that meeting Glodowski at the park

had been Cummings' idea. Dietze further stated that Cummings

had driven her to and from the shooting, and that she had left a

backpack containing the pistol used in the shooting in Cummings'

vehicle. Officers also obtained surveillance footage of Dietze

being dropped off at a gas station near her apartment after the

shooting. The vehicle which dropped Dietze at the gas station

was similar to Cummings' vehicle.

¶9 Following the interrogation of Dietze, police returned

to Cummings' home and asked whether he would be willing to
return to the station for further questioning. After being

assured that he was still not in custody, Cummings agreed.

Officers then transported Cummings back to the police station.

¶10 Following some preliminary questions, Cummings was

advised of his Miranda rights. Cummings agreed, both orally and

in writing, to waive those rights and speak with the officers.

The officers then questioned Cummings about the inconsistency

between his prior statements and the version of events given by

4
 Nos. 2011AP1653-CR & 2012AP520-CR

Dietze. During that discussion the following exchange took

place:

[OFFICER]: You've got a lot to lose, and at this
point, I'm telling you right now Carlos, no . . . all
bullshit aside, there's enough to charge you right
now! Okay? This is your opportunity to be honest
with me, to cut through all the bullshit and be honest
about what you know.

[CUMMINGS]: I'm telling you.

[OFFICER]: So why then do we got Carla and
[Dietze] telling us different?

[CUMMINGS]: What are they telling you?

[OFFICER]: I'm not telling ya! I'm not gonna
fuckin' lay all my cards out in front of you Carlos
and say, "This is everything I know!"

[CUMMINGS]: Well, then, take me to my cell. Why
waste your time? Ya know?

[OFFICER]: Cuz I'm hoping . . .

[CUMMINGS]: If you got enough . . .

[OFFICER]: . . . to get the truth from ya.

[CUMMINGS]: If you got enough to fuckin' charge
me, well then, do it and I will say what I have to
say, to whomever, when I plead innocent. And if they
believe me, I get to go home, and if they don't . . .

[OFFICER]: If who believes you?

[CUMMINGS]: . . . and if they don't, I get
locked up.
¶11 The interrogation continued and Cummings eventually

admitted that he had driven Dietze to a location near the park

where the shooting had occurred. Cummings further stated that,
when Dietze returned to Cummings' car she told him that she had

5
 Nos. 2011AP1653-CR & 2012AP520-CR

shot someone and asked to be taken home. Cummings admitted that

Dietze left her backpack with him but claimed that he found only

Dietze's wallet and keys inside. Cummings denied that he knew

Dietze intended to shoot Glodowski before driving her to the

park. He further denied that he ever possessed the gun used in

the shooting. Cummings was then informed that he was being

placed on a probation hold.5

¶12 Police then questioned Carla regarding the shooting.

Carla claimed to be having an affair with Cummings.6 She stated

that her husband would never grant her a divorce. Carla

explained that she and Cummings planned to have a third person

shoot and kill her husband so that they could collect his life

insurance policy and then flee together. Carla admitted her

part in the plan, which included a contribution of money towards

hiring the shooter.

5
At the time of the shooting, Cummings was on probation
term for three misdemeanor convictions of issuing worthless
checks, contrary to Wis. Stat. § 943.23(1) (2007-08).
6
Subsequent investigation would reveal that Cummings and
Carla were not, in fact, having an affair. Rather, it appears
from the record that Cummings was using Carla's affection for
him to secure the proceeds of her husband's life insurance
policy and never intended to have a relationship with her. This
fact, along with Dietze's documented mental health issues,
supports the circuit court's later conclusion that Cummings "was
using two women [who] were basically . . . cognitively disabled
for financial gain."

6
 Nos. 2011AP1653-CR & 2012AP520-CR

¶13 On November 19, 2008, the day following the shooting,

police conducted a search of Cummings' home.7 The search

uncovered a case and magazine for a .22 caliber Smith & Wesson

pistol, and five .22 caliber shell casings hidden in the

basement. A subsequent search of the garage revealed the .22

caliber Smith & Wesson pistol used to shoot Glodowski hidden in

a box.

¶14 On December 2, 2008, Cummings made his initial

appearance on a criminal complaint filed by the State. The

complaint charged Cummings with Attempted First Degree

Intentional Homicide As a Party to the Crime, contrary to Wis.

Stat. §§ 939.05, 939.32, and 940.01(1) (2007-08),8 a Class B

felony. On December 17, 2008, the court held a preliminary

hearing and bound Cummings over for trial.

¶15 On January 5, 2009, Cummings was arraigned on the

information which charged him with one count of Attempted First

Degree Intentional Homicide With a Dangerous Weapon, As a Party

to the Crime, contrary to Wis. Stat. §§ 939.05, 939.32, 939.63,
and 940.01(1), a Class B felony, and two counts of Aiding a

Felon, contrary to § 946.47(1)(a) and (b), a Class G felony.

Due to Cummings' prior convictions for passing worthless checks,

all three charges included habitual criminal penalty enhancers

7
Cummings had provided his consent for the search the
previous day, and thus no warrant was required. State v.
Sobczak, 2013 WI 52, ¶11, 347 Wis. 2d 724, 833 N.W.2d 59 (citing
Georgia v. Randolph, 547 U.S. 103, 109 (2006)).
8
All subsequent references to the Wisconsin Statutes in
this section of the opinion are to the 2007-08 version.

7
 Nos. 2011AP1653-CR & 2012AP520-CR

pursuant to Wis. Stat. § 939.62. Cummings entered pleas of not

guilty to all three charges.

¶16 On November 25, 2009, Cummings filed a motion to

suppress all the statements he made to police prior to being

given Miranda warnings and all the statements he made to police

after he asked, "Well, then, take me to my cell. Why waste your

time? Ya know?" during his interrogation.

¶17 In support of his motion, Cummings asserted that he

was "in custody" prior to being given Miranda warnings, and that

he had unequivocally invoked his right to remain silent when he

asked to be taken to a cell. He therefore argued that allowing

the prosecution to use those statements would violate his right

against self-incrimination. See U.S. Const. amend. V; Wis.

Const. Art. I, § 8.

¶18 The State opposed Cummings' motion. The State argued

that Cummings was not in custody at the time the interrogation

began, and was not interrogated until after he had received

Miranda warnings. The State further argued that Cummings'
statement——"Well, then, take me to my cell. Why waste your

time? Ya know?"——was not an unequivocal invocation of his right

to remain silent.

¶19 On December 2, 2009, the court held a hearing on

Cummings' motion. With respect to the first issue, the court

concluded that Cummings was "in custody" prior to being read

Miranda warnings and that a brief portion of the interrogation

occurred prior to Cummings being given the warnings. The court

8
 Nos. 2011AP1653-CR & 2012AP520-CR

therefore suppressed the "limited responses" that Cummings gave

to police prior to being given Miranda warnings.

¶20 On second issue, however, the court concluded that

Cummings' statement was not an unequivocal invocation of the

right to remain silent, and therefore denied his motion to

suppress. The court determined, relying on State v. Markwardt,

2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546, that Cummings

was "clearly" making an "attempt[] to get information from the

detectives" and was thus not attempting to end the

interrogation.

¶21 On January 8, 2010, Cummings pled no contest to First

Degree Reckless Injury, As a Party to the Crime, contrary to

Wis. Stat. §§ 939.05 and 940.23(1), a Class D felony, pursuant

to a plea agreement.9 In exchange for Cummings' plea, the State

agreed to dismiss and read in the remaining counts for

sentencing purposes and to dismiss the penalty enhancers. The

court accepted Cummings' plea, adjudged him guilty, and ordered

a presentence investigation report.
¶22 On March 5, 2010, the circuit court sentenced Cummings

to 24 years of imprisonment, with 14 years of initial

confinement to be followed by 10 years of extended supervision.

The court further ordered that Cummings pay $110,188.37 in

restitution to Glodowski.

9
The State filed an amended information on the day of
Cummings' no contest plea which substituted the charge of
Attempted First Degree Intentional Homicide with the charge of
First Degree Reckless Injury.

9
 Nos. 2011AP1653-CR & 2012AP520-CR

¶23 On December 13, 2010, Cummings filed a motion for

postconviction relief in the circuit court. In his motion,

Cummings alleged that his trial counsel had been ineffective for

failing to ask the court for a risk reduction sentence, and that

the sentence imposed by the court was unduly harsh. On this

basis, Cummings asked to be resentenced or alternatively, for a

modification of his sentence. Cummings subsequently added a

request that the court vacate the DNA surcharge it had imposed,

pursuant to State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203,

752 N.W.2d 393.

¶24 On July 1, 2011, the circuit court granted in part and

denied in part Cummings' postconviction motion. The court

granted the portion of Cummings' motion related to the DNA

surcharge, but denied his request for resentencing or sentence

modification. The court rejected Cummings' claim that his trial

counsel had been ineffective for failing to request a risk

reduction sentence. The court concluded that, given the

seriousness of the offense, requesting a risk reduction sentence
would have been "a complete waste of time." The court further

concluded that the sentence it had imposed was not unduly harsh:

[T]his court rarely gives a sentence that is maximum
or something close to the maximum.

But in this case, it felt that it was required,
it was necessary, or it would unduly depreciate the
seriousness of the offense, and there was a real need
to protect the public. When the court finally learned
what the motive was behind this, it was rather shocked
that Mr. Cummings was using two women [who] were
basically . . . cognitively disabled for financial
gain.

10
 Nos. 2011AP1653-CR & 2012AP520-CR

¶25 On July 15, 2011, Cummings appealed both his

conviction and the court's denial of his motion for

postconviction relief. Cummings argued that the circuit court

had erred in concluding that his statement——"Well, then, take me

to my cell. Why waste your time? Ya know?"——was not an

unequivocal invocation of his right to remain silent. Cummings

further argued that the sentence imposed by the circuit court

was unduly harsh.

¶26 On January 10, 2013, the court of appeals affirmed the

circuit court in all respects. Cummings, No. 2011AP1653-CR,

unpublished slip op., ¶1.

¶27 The court of appeals first concluded that Cummings'

statement was not an unambiguous invocation of the right to

remain silent. The court found that "a competing, and indeed

more compelling, interpretation [of Cummings' statement] is that

he was merely attempting to obtain more information from the

police about what his co-conspirators had been saying." Id.,

¶9. Because Cummings' statement was subject to a "reasonable
competing inference" the court concluded that it was not

unambiguous. Id., ¶7 (citing Markwardt, 306 Wis. 2d 420, ¶36).

¶28 The court further concluded that Cummings' sentence

was not unduly harsh, finding that "a sentence of fourteen years

of initial confinement and ten years of supervision, for

involvement in an offense that left the victim with the loss of

an eye and a bullet lodged near his brain stem, does not shock

the conscience of this court." Id., ¶14.

11
 Nos. 2011AP1653-CR & 2012AP520-CR

¶29 On February 15, 2013, Cummings petitioned this court

for review, which we granted on December 17, 2013.

B. State v. Smith

¶30 In late November 2010 Smith was interviewed by

Milwaukee Police Department Detective Travis Guy ("Detective

Guy") regarding a series of violent armed robberies involving a

stolen van.10 At the outset, Smith was given Miranda warnings

and agreed to waive his rights and speak to police. Smith then

discussed his involvement in the theft of the van, and readily

answered Detective Guy's questions.

¶31 When Detective Guy began asking about the armed

robberies, however, Smith stated as follows:

Smith: See, I don't want to talk about, I don't
want to talk about this. I don't know nothing about
this.

Detective Guy: Okay.

Smith: I don't know nothing. See, look, I'm
talking about this van. I don't know nothing about no
robbery.11 Or no -- what's the other thing?

Detective Guy: Hmmm?

Smith: What was the other thing that this is
about?

10
The record does not reveal the precise date of Detective
Guy's initial interview with Smith.
11
The context of this statement, following extensive
discussion of Smith's knowledge of the stolen van, and his later
statement——"I'm talking about this van. This stolen van."——
strongly indicate that Smith intended this sentence to convey
that he didn't know anything about the involvement of a van in
any robberies.

12
 Nos. 2011AP1653-CR & 2012AP520-CR

Detective Guy: Okay.

Smith: I don't want to talk . . . I don't know
nothing about this, see. That's --I'm talking about
this uh van. This stolen van. I don't know nothing
about this stuff. So, I don't even want to talk about
this.

Detective Guy: I got a right to ask you about
it.

. . .

Smith: I don't know nothing about this. I'm
here for the van.

. . .

Detective Guy: You don't know anything about
this robbery that happened at [address] on the 23rd of
November where a woman was approached . . . ?

Smith: No. Uh-uh. I don't know nothing about
this.
¶32 Following this exchange, Detective Guy returned his

questioning to the topic of the stolen van. Later during the

interrogation, Detective Guy again returned to the topic of the

robberies, asking Smith "do you want to tell me about [the

robberies]?" Smith replied, "What I got to do with it? What

that got to do with me? I don't know nothing about no robbery,

see, that's what I'm saying! I don't rob people." Detective

Guy continued to ask Smith for information, and Smith

subsequently admitted his involvement in the armed robberies.

¶33 On November 29, 2010, the State filed a criminal

complaint against Smith charging him with seven counts of Armed

Robbery, as a Party to the Crime, contrary to Wis. Stat.

13
 Nos. 2011AP1653-CR & 2012AP520-CR

§§ 943.32(2), 939.50(3)(c), and 939.05 (2009-10),12 a Class C

felony; three counts of Possession of a Firearm by a Felon,

contrary to Wis. Stat. §§ 941.29(2)(b) and 939.50(3)(g), a Class

G felony; two counts of Attempted Armed Robbery, as a Party to

the Crime, contrary to Wis. Stat. §§ 943.32(2), 939.50(3)(c),

939.05, and 939.32, a Class C felony; two counts of Burglary, as

a Party to the Crime, by Use of a Dangerous Weapon, contrary to

Wis. Stat. §§ 943.10(2)(e), 939.50(3)(e), 939.05, and

939.63(1)(b), a Class E felony; two counts of False

Imprisonment, as a Party to the Crime, by Use of a Dangerous

Weapon, contrary to Wis. Stat. §§ 940.30, 939.50(3)(h), 939.05,

and 939.63(1)(b), a Class H felony; one count of First Degree

Reckless Injury by Use of a Dangerous Weapon, contrary to Wis.

Stat. §§ 940.23(1)(a), 939.50(3)(d), and 939.63(1)(b), a Class D

felony; and one count of Operating a Vehicle Without the Owner's

Consent, contrary to Wis. Stat. §§ 943.23(3), and 939.50(3)(i),

a Class I felony.

¶34 On November 30, 2010, Smith made his initial
appearance. Smith received a copy of the complaint, and waived

its reading. The court found probable cause to continue holding

Smith, and set cash bail of $200,000. On December 9, 2010,

Smith waived his right to a preliminary hearing.

¶35 On January 10, 2011, Smith was arraigned on the

Information, which charged him with six counts of Armed Robbery,

12
All subsequent references to the Wisconsin Statutes in
this section are to the 2009-10 version.

14
 Nos. 2011AP1653-CR & 2012AP520-CR

as a Party to the Crime, contrary to Wis. Stat. §§ 943.32(2),

939.50(3)(c), and 939.05, a Class C felony; and one count of

First Degree Reckless Injury While Armed, contrary to Wis. Stat.

§§ 940.23(1)(a), 939.50(3)(d), and 939.63(1)(b), a Class D

felony. Smith acknowledged receipt of the Information, waived

its reading, and pled not guilty to all counts.

¶36 On March 30, 2011, Smith filed a motion to suppress

the statements he made to Detective Guy regarding the robberies.

Smith argued that he had unequivocally invoked his right to

remain silent prior to admitting his involvement in the crimes,

and that his statements had been the product of coercion on the

part of Detective Guy.

¶37 The State opposed Smith's motion, arguing that Smith's

statements regarding the right to remain silent were ambiguous

and that his admissions had not been obtained through coercion.

¶38 On July 14, 2011, the circuit court held a hearing on

Smith's motion to suppress. After hearing brief argument from

the parties, the court denied Smith's motion. With respect to
Smith's invocation of the right to remain silent, the court

concluded that "[t]he defendant did not clearly assert his right

to remain silent. There was ambiguity." The court further

rejected Smith's argument regarding coercion, stating that it

"didn't find anything close to what would be considered coercive

tactics under the case law."

¶39 On July 27, 2011, Smith pled guilty to three counts of

armed robbery and one count of first degree reckless injury,
pursuant to a plea agreement. In exchange for Smith's pleas,
15
 Nos. 2011AP1653-CR & 2012AP520-CR

the State agreed to dismiss and read in the remaining counts for

sentencing purposes. The court accepted Smith's pleas and

adjudged him guilty. The court then sentenced Smith to 35 years

imprisonment, with 25 years initial confinement to be followed

by 10 years of extended supervision.

¶40 On March 8, 2012, Smith appealed his convictions,

again arguing that he unambiguously invoked his right to remain

silent and that his incriminating statements should have been

suppressed.

¶41 On January 23, 2013, the court of appeals affirmed.

Smith, No. 2012AP520-CR, unpublished slip op., ¶1. The court

concluded that Smith was not attempting to terminate the

interview when he made his statements, but was rather indicating

that he did not wish to discuss one particular line of

questions. Id., ¶9. Because Smith continued his conversation

with police despite stating that he "[didn't] want to talk about

this," he had not unequivocally invoked his right to remain

silent. Id., ¶8.
¶42 On February 21, 2013, Smith petitioned this court for

review, which we granted on December 17, 2013.

II. STANDARD OF REVIEW

¶43 Whether a person has invoked his or her right to

remain silent is a question of constitutional fact. Markwardt,

306 Wis. 2d 420, ¶30 (citing State v. Jennings, 2002 WI 44, ¶20,

252 Wis. 2d 228, 647 N.W.2d 142; State v. Moats, 156 Wis. 2d 74,

94, 457 N.W.2d 299 (1990)).

16
 Nos. 2011AP1653-CR & 2012AP520-CR

¶44 "When presented with a question of constitutional

fact, this court engages in a two-step inquiry." State v.

Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463

(citations omitted). "First, we review the circuit court's

findings of historical fact under a deferential standard,

upholding them unless they are clearly erroneous." Id.

(citations omitted). "Second, we independently apply

constitutional principles to those facts." Id. (citations

omitted).

¶45 "'We review a trial court's conclusion that a sentence

it imposed was not unduly harsh and unconscionable for an

erroneous exercise of discretion.'" State v. Grindemann, 2002

WI App 106, ¶30, 255 Wis. 2d 632, 648 N.W.2d 507 (emphasis in

original) (quoting State v. Giebel, 198 Wis. 2d 207, 220, 541

N.W.2d 815 (Ct. App. 1995)). "We will not set aside a

discretionary ruling of the trial court if it appears from the

record that the court applied the proper legal standards to the

facts before it, and through a process of reasoning, reached a
result which a reasonable judge could reach." Id. (citing Loy

v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).

III. ANALYSIS

A. The Right to Remain Silent

¶46 "Both the United States and Wisconsin Constitutions

protect persons from state compelled self-incrimination." State

v. Hall, 207 Wis. 2d 54, 67, 557 N.W.2d 778 (1997); see also

17
 Nos. 2011AP1653-CR & 2012AP520-CR

U.S. Const. amend. V; Wis. Const. art. I, § 8.13 In order to

protect suspects from the "inherently compelling pressures" of

custodial interrogation, the United States Supreme Court has

developed procedural guidelines to be followed by police during

such interrogations. See Miranda, 384 U.S. at 467; see also

Markwardt, 306 Wis. 2d 420, ¶23. "A suspect's right to counsel

and the right to remain silent are separately protected by these

procedural guidelines." Markwardt, 306 Wis. 2d 420, ¶23 (citing

Miranda, 384 U.S. at 467–73).

¶47 After a suspect has been taken into custody, given the

Miranda warnings, and waived his Miranda rights, the right to

remain silent still guarantees a suspect's "right to cut off

questioning" during a custodial interrogation. Id., ¶24 (citing

Michigan v. Mosley, 423 U.S. 96, 103-04 (1975)).

¶48 Under these circumstances, a suspect must

"unequivocally" invoke the right to remain silent in order to

"cut off questioning." See Berghuis v. Thompkins, 560 U.S. 370,

386 (2010)(quotation marks omitted); Markwardt, 306 Wis. 2d 420,

13
This court has previously held that "[t]he state
constitutional right against compulsory self-incrimination is
textually almost identical to its federal counterpart." State
v. Jennings, 2002 WI 44, ¶40, 252 Wis. 2d 228, 647 N.W.2d 142.
Where "the language of the provision in the state constitution
is 'virtually identical' to that of the federal provision or
where no difference in intent is discernible, Wisconsin courts
have normally construed the state constitution consistent with
the United States Supreme Court's construction of the federal
constitution." State v. Agnello, 226 Wis. 2d 164, 180–81, 593
N.W.2d 427 (1999) (citing State v. Tompkins, 144 Wis. 2d 116,
133, 423 N.W.2d 823 (1988); Kenosha County v. C&S Management,
Inc., 223 Wis. 2d 373, 588 N.W.2d 236 (1999)).

18
 Nos. 2011AP1653-CR & 2012AP520-CR

¶26 (citing State v. Ross, 203 Wis. 2d 66, 75-79, 552 N.W.2d 428

(Ct. App. 1996)); see also Fifth Amendment-Invocation of the

Right to Cut Off Questioning, 124 Harv. L. Rev. 189, 196-97

(2010).

¶49 This standard, sometimes called the "clear

articulation rule," was originally developed by the United

States Supreme Court to govern invocation of the right to

counsel. See Davis v. United States, 512 U.S. 452 (1994). In

State v. Ross, the Wisconsin Court of Appeals extended the rule

to cover invocations of the right to remain silent, requiring

suspects to "unequivocally" invoke the right in order to cut off

questioning by police. Ross, 203 Wis. 2d at 70.

¶50 Recently, the Supreme Court confirmed that invocation

of the right to counsel and invocation of the right to cut off

questioning both required unequivocal invocation by a suspect.

See Berghuis, 560 U.S. at 381-82 (citing Davis, 512 U.S. at

459). Berghuis further confirmed that the unequivocal

invocation standard is an objective test. 560 U.S. at 381; see
also Davis, 512 U.S. at 458-59.

¶51 If a suspect's statement is susceptible to "reasonable

competing inferences" as to its meaning, then the "suspect did

not sufficiently invoke the right to remain silent." Markwardt,

306 Wis. 2d 420, ¶36 (citation omitted). If a suspect makes

such an ambiguous or equivocal statement, "police are not

required to end the interrogation . . . or ask questions to

clarify whether the accused wants to invoke his or her Miranda

19
 Nos. 2011AP1653-CR & 2012AP520-CR

rights." Berghuis, 560 U.S. at 381 (citing Davis, 512 U.S. at

461-62).

¶52 Once a suspect has invoked the right to remain silent

"all police questioning must cease——unless the suspect later

validly waives that right and 'initiates further communication'

with the police." Ross, 203 Wis. 2d at 74 (quoting Miranda, 384

U.S. at 473–74; Edwards v. Arizona, 451 U.S. 477, 484–85

(1981)). Thus, the "key question" is whether the suspect

unequivocally invoked the right to cut off questioning during

the interrogation. Markwardt, 306 Wis. 2d 420, ¶25 (citing

Ross, 203 Wis. 2d at 74).

1. State v. Cummings

¶53 Cummings argues that his statement——"Well, then, take

me to my cell. Why waste your time? Ya know?"——constituted an

unequivocal invocation of his right to remain silent, and thus,

should have served to cut off further questioning. We disagree.

¶54 In the context of the ongoing back and forth between

Cummings and the officers, this statement was susceptible to at
least two "reasonable competing inferences" as to its meaning.

Markwardt, 306 Wis. 2d 420, ¶36. Cummings is correct that his

statement could be read literally: as a request that he be

removed from the room because he was no longer interested in

talking to the officers. Another possibility, however, is that

his statement was a rhetorical device intended to elicit

additional information from the officers about the statements of

his co-conspirators. Indeed, the plain language of the
statement seems to be an invitation to the officer to end the
20
 Nos. 2011AP1653-CR & 2012AP520-CR

interrogation, presumably because continued questioning would

prove fruitless unless the officer provided additional

information to Cummings. Such a statement is not an unequivocal

assertion that Cummings wanted to end the interrogation.

¶55 Both the circuit court and the court of appeals

considered this second interpretation to be the more compelling

one of the two. See Cummings, No. 2011AP1653, unpublished slip

op., ¶8. We need not choose one as more compelling than the

other in order to conclude that Cummings' statement was not an

unequivocal invocation of the right to remain silent. See

Markwardt, 306 Wis. 2d 420, ¶36.

¶56 Cummings further argues that his statement was an

unequivocal invocation because it was very similar to the

statements of the suspect in State v. Goetsch, 186 Wis. 2d 1,

519 N.W.2d 634 (1994). In Goetsch the suspect stated, "I don't

want to talk about this any more. I've told you, I've told you

everything I can tell you. You just ask me any questions and I

just want to get out of here. Throw me in jail, I don't want to
think about this." Id. at 7. The court of appeals in Goetsch

concluded that this statement constituted an unequivocal

invocation of the right to remain silent. Id. at 7-9.

¶57 While the statement in Goetsch is superficially

similar to the one at issue in this case, there are critical

differences. First, the suspect in Goetsch, in addition to

referencing jail, clearly stated that he did not wish to speak

with police. Cummings did not make any such additional
statements. Second, the suspect in Goetsch expressed that he
21
 Nos. 2011AP1653-CR & 2012AP520-CR

was exhausted, and he had disengaged from the conversation.

Cummings, on the other hand, made his statement while verbally

sparring with police. Finally, the suspect in Goetsch had

nothing to gain from being thrown in jail except the end of the

interview. Thus his statement is not susceptible to any

"reasonable competing inferences" as to its meaning. Markwardt,

306 Wis. 2d 420, ¶36. As we have discussed, this is not the

case with Cummings' statement.

¶58 In fact, Cummings' statement in the case at issue is

more similar, in terms of context, to the statement in Markwardt

than the one in Goetsch. In Markwardt the suspect stated

"[t]hen put me in jail. Just get me out of here. I don't want

to sit here anymore, alright. I've been through enough today."

Markwardt, 306 Wis. 2d 420, ¶35. The suspect in Markwardt made

her statement during a sequence of verbal "fencing," wherein the

interrogating officer repeatedly caught the suspect "in either

lies or at least differing versions of the events." Id., ¶36.

Because of this context, the court of appeals concluded that the
suspect's statement was subject to "reasonable competing

inferences" as to its meaning. As a result, the court of

appeals concluded that the suspect's statement was not an

unequivocal invocation of the right to remain silent, and thus

did not serve to cut off questioning. Id.

¶59 Cummings' statement——"Well, then, take me to my cell.

Why waste your time? Ya know?"——similarly occurred during a

period of verbal back and forth between Cummings and the
officers, and is thus similarly subject to reasonable competing
22
 Nos. 2011AP1653-CR & 2012AP520-CR

inferences. As a result of these competing inferences, we

conclude that Cummings' statement was not an unequivocal

invocation of the right to remain silent. We therefore affirm

the court of appeals.

2. State v. Smith

¶60 Smith argues that his statement——"See, I don't want to

talk about, I don't want to talk about this. I don't know

nothing about this."——in response to Detective Guy's questions

constituted an unequivocal invocation of his right to remain

silent. Smith further notes that he repeated his assertion that

he didn't want to talk three different times within the space of

just a few sentences.

¶61 We agree that, standing alone, Smith's statements

might constitute the sort of unequivocal invocation required to

cut off questioning, and we further acknowledge that Smith's

statement presents a relatively close call. In the full context

of his interrogation, however, Smith's statements were not an

unequivocal invocation of the right to remain silent.
¶62 When placed in context it is not clear whether Smith's

statements were intended to cut off questioning about the

robberies, cut off questioning about the minivan, or cut off

questioning entirely. Some of Smith's statements are also

exculpatory statements or assertions of innocence, which do not

indicate a desire to end questioning at all. Prior to Smith's

statement, Detective Guy had been asking Smith about his

involvement in the theft of the minivan. Smith had been

23
 Nos. 2011AP1653-CR & 2012AP520-CR

participating in this portion of the questioning in a fairly

straightforward and cooperative fashion.

¶63 When the topic of the armed robberies came up, Smith

stated, "I don't want to talk about this" four times, but also

stated, "I don't know nothing about this" a total of seven

times. In some instances Smith seems to mean the van when he

uses the words "this" or "that," but in other instances it seems

he means the robberies. In listening to the recording of the

interrogation, it seems that he meant to refer to the robberies

but this is not the only interpretation.

¶64 Further, while "I don't want to talk about this" seems

to indicate a desire to cut off questioning, "I don't know

nothing about this" is an exculpatory statement proclaiming

Smith's innocence. Such a proclamation of innocence is

incompatible with a desire to cut off questioning.

¶65 Given the apparent confusion, and although he was not

required by law to do so, Detective Guy gave Smith an

opportunity to clarify his statements when he asked, "Do you
want to tell me about [the robberies]?" In response, Smith

again proclaimed his innocence, stating: "I don't know nothing

about no robbery, see, that's what I'm saying! I don't rob

people."

¶66 Smith's own words also indicated a continued

willingness to answer questions. Following the statement that

Smith emphasizes——"See, I don't want to talk about, I don't want

to talk about this. I don't know nothing about this."——Smith
also stated: "I'm talking about this van. This stolen van. I
24
 Nos. 2011AP1653-CR & 2012AP520-CR

don't know nothing about this stuff . . . I don't know nothing

about this. I'm here for the van." These additional statements

indicate that Smith was willing to continue answering questions

about the van, but was unwilling, or perhaps unable, to answer

questions about the robberies.

¶67 "[A] defendant may selectively waive his Miranda

rights, deciding to 'respond to some questions but not others.'"

State v. Wright, 196 Wis. 2d 149, 156, 537 N.W.2d 134 (Ct. App.

1995) (quoting Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir.

1988)). Such selective "refusals to answer specific questions,"

however, "do not assert an overall right to remain silent." Id.

at 157 (citing Fare v. Michael C., 442 U.S. 707, 726–27 (1979)).

¶68 Finally, our determination regarding the meaning of

Smith's statement need not be definitive to conclude that he did

not unequivocally invoke the right to remain silent. The mere

fact that Smith's statements could be interpreted as

proclamations of innocence or selective refusals to answer

questions is sufficient to conclude that they are subject to
"reasonable competing inferences" as to their meaning.

Markwardt, 306 Wis. 2d 420, ¶36.

¶69 Thus, under the facts and circumstances of the case at

issue, Smith did not unequivocally invoke his right to remain

silent, such that police were required to cut off their

questioning. We therefore affirm the court of appeals.

B. Unduly Harsh Sentence

¶70 "Within certain constraints, Wisconsin circuit courts
have inherent authority to modify criminal sentences." State v.
25
 Nos. 2011AP1653-CR & 2012AP520-CR

Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828 (citing

State v. Hegwood, 113 Wis. 2d 544, 546, 335 N.W.2d 399 (1983)).

A circuit court may not, however, modify a sentence merely "on

reflection and second thoughts alone." Harbor, 333 Wis. 2d 53,

¶35 (citing State v. Wuensch, 69 Wis. 2d 467, 474, 480, 230

N.W.2d 665 (1975)). Ordinarily a defendant seeking a sentence

modification must show the existence of a "new factor" unknown

to the court at the time of sentencing. See, e.g., State v.

Ninham, 2011 WI 33, ¶88, 333 Wis. 2d 335, 797 N.W.2d 451.

¶71 In the absence of a new factor, a circuit court has

authority to modify a sentence only under certain narrow

circumstances. Among those circumstances is if "the court

determines that the sentence is unduly harsh or unconscionable."

Harbor, 333 Wis. 2d 53, ¶35 n.8 (citing State v. Crochiere, 2004

WI 78, ¶12, 273 Wis. 2d 57, 681 N.W.2d 524; Wuensch, 69

Wis. 2d 467; State v. Ralph, 156 Wis. 2d 433, 438, 456

N.W.2d 657 (Ct. App. 1990)).14

¶72 A sentence is unduly harsh or unconscionable "only
where the sentence is so excessive and unusual and so

disproportionate to the offense committed as to shock public

sentiment and violate the judgment of reasonable people

concerning what is right and proper under the circumstances."

14
The circuit court may also modify a sentence without a
new factor if it determines that the sentence originally imposed
was illegal or void, State v. Crochiere, 2004 WI 78, ¶12, 273
Wis. 2d 57, 681 N.W.2d 524, or if it relied on inaccurate
information when it imposed the original sentence. State v.
Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d 179, 717 N.W.2d 1.

26
 Nos. 2011AP1653-CR & 2012AP520-CR

Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975)

(citations omitted).

¶73 Cummings argues that his sentence of 14 years of

initial confinement to be followed by 10 years of extended

supervision was unduly harsh. Cummings asserts that "near

maximum sentences" are "deserving of greater scrutiny than

sentences well within the normal statutory limits." Cummings

claims that "[s]uch sentences may be due to the erroneous

exercise of discretion." We agree with the court of appeals

that Cummings' sentence was not unduly harsh.

¶74 Cummings is correct that "[a] sentence well within"

the statutory limits is unlikely to be "so disproportionate to

the offense committed as to shock the public sentiment and

violate the judgment of reasonable people concerning what is

right and proper under the circumstances." State v. Daniels,

117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983) (citing

Ocanas, 70 Wis. 2d at 185). Near maximum sentences are not,

however, automatically suspect.
¶75 "'What constitutes adequate punishment is ordinarily

left to the discretion of the trial judge. If the sentence is

within the statutory limit, appellate courts will not interfere

unless clearly cruel and unusual.'" Ninham, 333 Wis. 2d 335,

¶85 (citation omitted). Further, we will not disturb the

exercise of the circuit court's sentencing discretion so long as

"it appears from the record that the court applied the proper

legal standards to the facts before it, and through a process of

27
 Nos. 2011AP1653-CR & 2012AP520-CR

reasoning, reached a result which a reasonable judge could

reach." Grindemann, 255 Wis. 2d 632, ¶30 (citation omitted).

¶76 In the case at issue, the circuit court stated the

proper legal standards to be considered at sentencing. See

State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197.

The circuit court stated the reasons for the severe sentence on

the record, stating:

[T]his court rarely gives a sentence that is maximum
or something close to the maximum.

But in this case, it felt that is was required,
it was necessary, or it would unduly depreciate the
seriousness of the offense, and there was a real need
to protect the public.
¶77 Finally, while it is true that not every judge would

impose a maximum or near maximum sentence for the offenses

Cummings committed, it is hard to say that no reasonable judge

would do so. As a result, we conclude that the circuit court

did not erroneously exercise its discretion and we affirm the

court of appeals.

IV. CONCLUSION

¶78 We conclude that neither Cummings nor Smith

unequivocally invoked the right to remain silent during their

interrogations. As a result, the circuit court properly denied

each defendant's motion to suppress the incriminating statements

made to police. We also conclude that Cummings' sentence was

not unduly harsh. We therefore affirm the court of appeals in

both cases.

28
 Nos. 2011AP1653-CR & 2012AP520-CR

By the Court.—The decisions of the court of appeals are

affirmed.

29
 No. 2011AP1653-CR & 2012AP520-CR.dtp

¶79 DAVID T. PROSSER, J. (concurring in part, dissenting

in part). In these cases, two defendants claim that they

effectively asserted their right to remain silent. The majority

concludes that both defendants failed. Majority op., ¶4. I

agree with the majority that Carlos Cummings failed to

unequivocally invoke his Fifth Amendment1 right to remain silent

after receiving a Miranda2 warning, majority op., ¶4, and I join

the majority opinion with respect to its Cummings analysis.

However, I do not agree with the majority's conclusion that

Adrean Smith (Smith) did not unequivocally invoke his right to

remain silent when he said, "I don't want to talk about this."

Accordingly, with respect to Adrean Smith, I respectfully

dissent.

¶80 Detective Travis Guy (Detective Guy) of the Milwaukee

Police Department conducted an interrogation of Smith regarding

armed robberies that involved a stolen van. The majority quotes

the exchange in paragraph 31. After Smith initially waived his

Miranda rights, he talked briefly about the stolen van and then
said, "That's pretty much all I can say."

¶81 Detective Guy proceeded to talk about an armed

robbery, and Smith responded by saying, "See, I don't want to

talk about, I don't want to talk about this." He also said, "I

don't even want to talk about——I don't know nothing about this,

1
"No person shall be . . . compelled in any criminal case
to be a witness against himself . . . ." U.S. Const. amend. V.
2
Miranda v. Arizona, 384 U.S. 436 (1966).

1
 No. 2011AP1653-CR & 2012AP520-CR.dtp

see. I'm talking about this van. . . . So, I don't want to

talk about this."

¶82 Detective Guy responded, "I got a right to ask you

about it." Detective Guy then continued to question Smith.

¶83 Detective Guy did not have "a right" to question Smith

after Smith said he did not want to talk. The detective's

statement to the contrary undercut the defendant's

constitutional right to remain silent.3 Despite initially

informing Smith that he had "the right to stop the questioning

or remain silent at any time [he] wish[ed]," Detective Guy

ignored a clear statement that Smith did not want to talk.

¶84 The majority concludes that Smith's statements were

equivocal because, although he said "I don't want to talk about

this" four times, according to the majority, it was unclear

whether "this" was referring to the van, the robberies, or the

interrogation in general. Majority op., ¶63. I disagree. True

confusion can be remedied with follow-up questions. Even if not

required, clarifying questions reduce the risk that further
inquiry will violate the suspect's constitutional rights when an

officer truly believes a suspect's statement was ambiguous.

¶85 The statements in this case are not appreciably

different from the statements in State v. Goetsch, 186

3
An officer's assertion of authority in response to a
defendant's assertion of a constitutional right is troubling
when the asserted authority contradicts the right. See State v.
Wantland, 2014 WI 58, ¶27, ___ Wis. 2d ___, ___ N.W.2d ___
(Prosser, J., dissenting). When Detective Guy asserted that he
had a right to question Smith, he effectively precluded Smith
from asserting his right to end questioning.

2
 No. 2011AP1653-CR & 2012AP520-CR.dtp

Wis. 2d 1, 7, 519 N.W.2d 634 (Ct. App. 1994). In Goetsch, the

defendant said, "I don't want to talk about this anymore. I've

told you, I've told you everything I can tell you. You just ask

me any questions and I just want to get out of here. Throw me

in jail, I don't want to think about this." Id. Despite the

fact that Goetsch continued to speak after he said he did not

want to talk, the court of appeals determined that he had

invoked his right to remain silent. Id. at 7-9.

¶86 Like Goetsch, Smith told his interrogator that he had

given all the information he had. Smith's statement——"I don't

want to talk about this"——is identical to one of Goetsch's

statements. Id. at 7. Thus, there is no basis for the

different result in the present case.

¶87 The Supreme Court said that a defendant may invoke the

right to cut off questioning by saying "that he want[s] to

remain silent or that he [does] not want to talk with the

police." See Berghuis v. Thompkins, 560 U.S. 370, 382 (2010).

When Smith said, "I don't want to talk about this," he
unambiguously indicated that he did indeed not want to talk

anymore.

¶88 For the foregoing reasons, I respectfully concur in

part and dissent in part.

¶89 I am authorized to state that Justice ANN WALSH

BRADLEY joins this concurrence/dissent.

3
 No. 2011AP1653-CR & 2012AP520-CR.ssa

¶90 SHIRLEY S. ABRAHAMSON, C.J. (dissenting).

"I don't want to talk about it." (Smith)

"Take me to my cell." (Cummings)
¶91 Miranda guides us in understanding a suspect's

invocation during interrogation of the right to remain silent:

"[I]f [a defendant] . . . indicates in any manner that he does

not wish to be interrogated, the police may not question him."1

¶92 Recently, the United States Supreme Court adopted the

Davis2 objective "unequivocal invocation" test for gauging a

defendant's invocation of the right to remain silent. See

Berghuis v. Thompkins, 560 U.S. 370 (2010).

¶93 The defendants and the State agree that

Davis/Thompkins governs the instant cases but express concern

that the court of appeals has not followed these Supreme Court

holdings.

¶94 Both defendant Cummings and the State agree, as do I,

that under the Davis "unequivocal invocation" test, the

determination of whether an invocation of a Miranda right is

unequivocal uses an objective standard. Whether a defendant has

unequivocally invoked a right is assessed by determining how a

reasonable police officer would understand the suspect's

1
Miranda v. Arizona, 384 U.S. 436, 445 (1966) (emphasis
added).
2
Davis v. United States, 512 U.S. 452 (1994).

1
 No. 2011AP1653-CR & 2012AP520-CR.ssa

statement in the circumstances.3 Defendant Cummings and the

State agree that certain language in State v. Ross, 203

Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996), referring to the

suspect's subjective intent, is problematic under

Davis/Thompkins.

¶95 The State explicitly asks the court to disavow

language in Ross referring to the suspect's intent, language

that has been cited in other court of appeals decisions. The

State's request is framed as follows:

The State agrees with Cummings that language in Ross
referring to the suspect's subjective intent is
problematic. As Cummings observes, the test in Davis
(and Thompkins) is objective: whether a suspect has
unequivocally invoked his or her rights under Miranda
is "an objective inquiry that 'avoid[s] difficulties
of proof and . . . provide[s] guidance to officers' on
how to proceed in the face of ambiguity." Thompkins,
560 U.S. at 381-82 (quoting Davis, 512 U.S. at 458-
59). To the extent that Ross suggests that courts and
police must consider a suspect's subjective intent, as
well as his or her statements and non-verbal cues, in
determining whether an unequivocal invocation has been
made, Ross is inconsistent with Davis and Thompkins.
The State asks the court to address this issue in its
opinion, and explicitly disavow language in Ross
referring to the suspect's intent, which was also
cited in [State v.] Markwardt, [2007 WI App 242,] 306
Wis. 2d 420, ¶28, [742 N.W.2d 546,] and [State v.]

3
In addressing the unequivocal invocation test of whether a
suspect seeks to invoke his or her right to counsel, the Court
explained: "Although a suspect need not 'speak with the
discrimination of an Oxford don,' . . . he must articulate his
desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand
the statement to be a request for an attorney." Davis, 512 U.S.
at 459 (quoted source omitted).

2
 No. 2011AP1653-CR & 2012AP520-CR.ssa

Hampton, [2010 WI App 169,] 330 Wis. 2d 531, ¶46[, 793
N.W.2d 901].4
¶96 The majority opinion relies on Ross and Markwardt,5

citing the cases frequently. The majority opinion does not,

however, clarify Ross in the manner requested by both the State

and Cummings.

¶97 The majority opinion, dwelling on the suspect's

subjective motives, seems to apply a subjective "unequivocal

invocation test," contrary to the holdings of the United States

Supreme Court in Davis and Thompkins. I think federal district
court Judge Griesbach got it right in Saeger v. Avila, 930 F.

Supp. 2d 1009 (E.D. Wis. 2013), overturning an unpublished court

of appeals decision.6

¶98 The federal court stated that the Wisconsin court of

appeals "found that while Saeger's actual words were clear, he

did not really mean them." The Saeger court concluded that "if

this reasoning [of the court of appeals] were accepted, then it

is difficult to imagine a situation where a suspect could

meaningfully invoke the right to remain silent no matter what

words he used." Saeger, 930 F. Supp. 2d at 1015-16.
¶99 Saeger correctly stands for the proposition that a

court should look to the words the suspect uses in the context

in which they were spoken, but that a court cannot manufacture

4
Brief of Plaintiff-Respondent and Supplemental Appendix at
12-13.
5
State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742
N.W.2d 546.
6
State v. Saeger, No. 2009AP133-CR, unpublished slip op.
(Wis. Ct. App. Aug. 11, 2010). Saeger was a habeas case.

3
 No. 2011AP1653-CR & 2012AP520-CR.ssa

ambiguity "by examining a suspect's possible motive . . . ."

Saeger, 930 F. Supp. 2d at 1019.

¶100 The majority opinion seems to assert that the

defendants did not mean what they said.7

¶101 In addition to arguably employing the wrong test, the

majority opinion finds equivocation where, in my opinion, none

exists and ignores the plain meaning of the defendants' requests

in both cases. The majority opinion's application of the

"unequivocal invocation" test to the two instant cases, whether

as a subjective or objective test, ignores the reality of

colloquial speech.

¶102 In the end, I conclude that a reasonable person would

understand that "I don't want to talk about this" and "take me

to my cell" mean the conversation is at an end.

¶103 As the law currently stands, law enforcement officers

are encouraged but not required to ask clarifying questions,8 and

courts are encouraged to resist creating ambiguity in

straightforward statements. In both Smith and Cummings, had the
officers viewed the statements at issue as unclear and asked

7
Majority op., ¶¶54, 58-59, 62 (speculating that Cummings
was "fencing" with his interrogator and that Smith was
professing his innocence).
8
Davis, 512 U.S. at 461 ("Of course, when a suspect makes
an ambiguous or equivocal statement it will often be good police
practice for the interviewing officers to clarify whether or not
he actually wants an attorney.")

4
 No. 2011AP1653-CR & 2012AP520-CR.ssa

clarifying questions, appellate review in the court of appeals

and in this court might have been avoided.9

¶104 Although neither the State nor the defendants

challenge the use of the Davis/Thompkins rule, I do.

¶105 I commented on the shortcomings of the "unequivocal

invocation" test in my dissent in State v. Subdiaz-Osorio in the

context of invoking one's Miranda right to counsel10 and in my

dissent in State v. Wantland in the context of withdrawal of

consent to a search.11 These comments apply to the present cases

relating to invocation of a suspect's Miranda right to remain

silent.

¶106 Because it is so difficult to find a clear,

discernable, bright line between equivocal and unequivocal

statements, courts employ "selective literalism," sometimes

viewing a suspect's language as unequivocal, other times

requiring very clear language.12
9
The interrogating officer in Smith did not merely fail to
ask clarifying questions; he erroneously stated, "I got a right
to ask you about it," asserting his authority and undercutting
the defendant's constitutional right to remain silent. Accord
State v. Wantland, 2014 WI 58, ¶¶81-82, ___ Wis. 2d ___, ___
N.W.2d ___ (Abrahamson, C.J., dissenting) (concluding that an
officer cannot cut off a defendant's opportunity to refuse to
give consent to a search by erroneously asserting legal
authority).
10
State v. Subdiaz-Osorio, 2014 WI 87, ¶¶___, ___
Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting).
11
State v. Wantland, 2014 WI 58, ¶¶84-91, ___ Wis. 2d ___,
___ N.W.2d ___ (Abrahamson, C.J., dissenting).
12
Marcy Strauss, Understanding Davis v. United States, 40
Loyola L.A. L. Rev. 1011, 1062 (citing Peter M. Tiersma &
Lawrence M. Solan, Cops and Robbers: Selective Literalism in
American Criminal Law, 38 Law & Soc'y Rev. 229, 256 (2004)).
5
 No. 2011AP1653-CR & 2012AP520-CR.ssa

¶107 As I wrote in my dissents in Subdiaz-Osorio and

Wantland, the "unequivocal invocation" test invites equivocation

on the part of courts and has led to inconsistent, subjective

results in the case law.

¶108 Inconsistencies are glaringly apparent in courts' use

of the "unequivocal invocation" test in the context of the right

to counsel. Comparing statements that have been deemed

"unequivocal" by a court with those that have been deemed

"equivocal" reveals an unsettling arbitrariness. For instance,

one court deemed "Can I call my lawyer?" equivocal, whereas

another deemed "Can I have my lawyer present when [I tell you my

story]?" unequivocal.13

¶109 I agree with Justice Sotomayor's dissent in the recent

5-4 Thompkins decision, which comments on the weaknesses of the

"unequivocal invocation" test in evaluating a suspect's

statements as follows:

The Court asserts in passing that treating ambiguous
statements or acts as an invocation of the right to
silence will only marginally serve Miranda's goals.
Experience suggests the contrary. In the 16 years
since [Davis v. United States, 512 U.S. 452, 461
(1994)] was decided, ample evidence has accrued that
criminal suspects often use equivocal or colloquial
language in attempting to invoke their right to
silence. A number of lower courts that have
(erroneously, in my view) imposed a clear-statement
requirement for invocation of the right to silence
have rejected as ambiguous an array of statements
whose meaning might otherwise be thought plain. At a

13
Dormire v. Wilkinson, 249 F.3d 801, 805 (8th Cir. 2001);
Taylor v. State, 553 S.E.2d 598, 601-02 (Ga. 2001).

For a survey of statements that have and have not been
deemed equivocal, see Strauss, supra note 12, at 1061-62.

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minimum, these decisions suggest that differentiating
"clear" from "ambiguous" statements is often a
subjective inquiry.14
¶110 Because the majority opinion fails to uphold the broad

protection mandated by Miranda and undermines the core principle

of protecting the defendants' Fifth Amendment right against

compelled self-incrimination, I dissent.

14
Berghuis v. Thompkins, 560 U.S. 370, 410-11 (2010)
(Sotomayor, J., dissenting) (internal quotation marks, citation,
and footnote omitted).

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