State v. Forbush

SHIRLEY S. ABRAHAMSON, C.J.

¶ 57. (concurring). Because Justice Roggensack's opinion appears as *653the first opinion in print and electronic publications and inconsistently employs the words "we" and "us" (incorrectly in many instances, inasmuch as no justice is joining her opinion), it is important to clarify the precedential value of Justice Roggensack's opinion. It has none. See Justice Roggensack's op., ¶ 2, n.3 (explaining that four justices agree to reverse the decision of the court of appeals, although they do not agree on the rationale).

¶ 58. I agree to some extent with the writings of both Justice Roggensack and Justice Crooks. I agree with Justice Roggensack's bottom line that Forbush's right to counsel was violated and that Forbush's statements must be suppressed. I agree with Justice Crooks's criticism of Justice Roggensack's reasoning regarding Wisconsin law and Montejo v. Louisiana, 556 U.S._, 129 S. Ct. 2079 (2009).1 Justice Roggensack does not forthrightly rest her decision on the Wisconsin *654Constitution. Instead, Justice Roggensack vacillates between resting on the Wisconsin Constitution, on constitutional interpretation in the case law, and nebulous concepts of "fundamental constitutional principles" and "sound policy" derived from the Wisconsin Constitution and our case law.2

¶ 59. I conclude that Forbush's right to counsel is appropriately tethered to the Wisconsin Constitution.

¶ 60. I conclude that Forbush's right to counsel is protected under Article I, Section 7 of the Wisconsin Constitution, which provides: "In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel. . . ."

¶ 61. This case must be understood in the light of two decisions — our decision in State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, and the United States Supreme Court's decision in Montejo v. Louisiana, 556 U.S._, 129 S. Ct. 2079 (2009) — and in light of Wisconsin constitutional law and constitutional history.

*655¶ 62. In Dagnall, this court interpreted the Sixth Amendment to the United States Constitution, not the Wisconsin Constitution. The Dagnall court suppressed a defendant's incriminating statements under the Sixth Amendment, concluding that a presumption existed that the defendant had invoked his right to counsel when (1) the defendant had been charged; (2) the defendant had counsel; and (3) law enforcement officers were aware that the defendant had counsel.3 Both Forbush and the State agree that the well-established law enforcement practice in Wisconsin has been to refrain from interrogating charged and represented defendants

¶ 63. In Montejo, the United States Supreme Court overruled its prior decisions to conclude that the protections of the Sixth Amendment right to counsel are equivalent to the protections of an accused's Fifth Amendment right to counsel. The Court ruled in Montejo that a defendant who has been charged with a crime may waive his Sixth Amendment right to counsel so long as the relinquishment of the right is voluntary, knowing, and intelligent;4 an equivocal request for counsel does not constitute a request for counsel under the Sixth Amendment.5

¶ 64. The United States Supreme Court's interpretation of the Sixth Amendment in Montejo supersedes our interpretation of the Sixth Amendment in Dagnall and our previous interpretations of the Sixth Amendment.6 "[T]he Supremacy Clause of the United *656States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court."7

¶ 65. Thus, Forbush concludes that he is foreclosed by the Sixth Amendment. He focuses on the Wisconsin Constitution. I too focus my analysis on the Wisconsin Constitution. The core issue Forbush presents in the instant case is whether Article I, Section 7 of the Wisconsin Constitution requires the suppression of the statements he made to Detective Norlander.8

*657¶ 66. Forbush calls our attention to Justice Scalia's majority opinion in Montejo, inviting state courts to look to their own constitutions.9 Justice Scalia wrote: "If a State wishes to abstain from requesting interviews with represented defendants when counsel is not present, it obviously may continue to do so."10

¶ 67. No invitation from the United States Supreme Court is necessary for a state court to abide by its own constitution. Wisconsin judges take an oath to support the Wisconsin Constitution. The long-standing tradition in this State is to protect the rights provided by the fundamental charter between Wisconsin and the people of this state.

¶ 68. State courts have, without question, the power to interpret their state constitutions differently than the United States Supreme Court has interpreted even parallel, analogous federal constitutional provisions.11

*658¶ 69. It is axiomatic that a state's highest court is the final arbiter of the meaning of the state constitution, subject to the rule that a state may not infringe upon protections afforded by the federal constitution. Nearly fifty years ago our court explained that when interpreting our Constitution, decisions from the United States Supreme Court interpreting analogous provisions in the federal Constitution "are eminent and highly persuasive, but not controlling, authority . . . ."12

¶ 70. This court has explained that it "will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin *659and the laws of this state require that greater protection of citizens' liberties ought to be afforded."13 Article I, Section 22 of the Wisconsin Constitution admonishes: "The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles."

¶ 71. Based on our long tradition, I accept Justice Scalia's invitation to interpret the protections afforded Forbush under the Wisconsin Constitution. I conclude that under the Wisconsin Constitution, an accused is afforded the protections this court previously described in Dagnall,14 Hornung,15 and Ward16 to he attached to the Sixth Amendment. Applying the holding of Dagnall to the Wisconsin Constitution, I conclude that Forbush "was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge."17 My conclusion is grounded in Wisconsin's long history of protecting an accused's meaningful right to counsel, a history dating back well before the protections under the Sixth Amendment were extended to the people of this State.18

¶ 72. In reaching this conclusion I am following the course this court took in our recent decision in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899. *660The history of Knapp is analogous to the history of the present case. Knapp provides an example of this court's interpreting the Wisconsin Constitution to afford greater protection to our citizens' liberties than that provided under the federal constitution.

¶ 73. In State v. Knapp (Knapp I), 2003 WI 121, 265 Wis. 2d 278, 666 N.W.2d 881, the court interpreted the Fifth Amendment of the federal Constitution. (In Dagnall, this court interpreted the Sixth Amendment.) The Knapp I court concluded that the fruit of the poisonous tree doctrine extended to derivative evidence discovered as a result of defendant's voluntary statements obtained without Miranda warnings.

¶ 74. Thereafter, in United States v. Patane, 542 U.S. 630 (2004), the United States Supreme Court disagreed with our court's interpretation of the Fifth Amendment and concluded in a plurality opinion that the admission of such derivative evidence did not violate the Fifth Amendment.19 The United States Supreme Court vacated the Knapp I decision and remanded the case to this court.20 (In Montejo the Supreme Court disagreed with our court's interpretation of the Sixth Amendment in Dagnall.)

¶ 75. On remand of Knapp I, this court had to decide in Knapp II21 whether to follow the United States Supreme Court decision in Patane or stay with *661Knapp I and hold that the physical evidence obtained as the direct result of an intentional Miranda violation should be suppressed as a violation of Article I, Section 8 of the Wisconsin Constitution (the Fifth Amendment analogue).22 (In the instant case, this court has to decide whether to follow the United States Supreme Court decision in Montejo or adhere to Dagnall as a matter of state constitutional law.)

¶ 76. The State argued in Knapp II that Patane was dispositive because neither did Knapp raise violations of, nor did this court base its decision in Knapp II on, our state constitution's analogue of the Fifth Amendment. Moreover, the State argued that this court had declined in previous cases to interpret the Wisconsin Constitution's right against self-incrimination in Article I, Section 8 (textually almost identical to that right in the Fifth Amendment) more broadly than the federal constitutional right.23 (The State makes a similar argument in the instant case.)

¶ 77. On remand in Knapp II, relying upon Wisconsin's long and cherished history of providing robust protection for individual rights to preserve the integrity of our criminal justice system, this court held that the Wisconsin Constitution provides greater protections under Article I, Section 8 than are afforded under the analogous Fifth Amendment of the United States Constitution.24 In the present case, I would follow the precedent set forth in Knapp II and apply the state constitution.

*662¶ 78. Protecting an accused's right to counsel in pre-trial interrogation is imperative to protect the trial rights of an accused and to enhance the integrity of the fact-finding process. As the United States Supreme Court recognized in Miranda: "Without the protections flowing from adequate warning and the rights of counsel, 'all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.' Mapp v. Ohio, 367 U.S. 643, 685 (1961) (Harlan, J., dissenting). Cf. Pointer v. Texas, 380 U.S. 400 (1965)."25

¶ 79. I would interpret Article I, Section 7 of the Wisconsin Constitution following the reasoning and conclusions set forth in Dagnall and other Wisconsin cases interpreting a charged defendant's right to counsel. In doing so I carry forward our 1859 Carpenter decision26 and this court's longstanding state constitutional law jurisprudence to protect an accused's meaningful right to counsel.

¶ 80. For the reasons set forth, I conclude that the State violated Forbush's constitutional right to counsel under Article I, Section 7 of the Wisconsin Constitution. The circuit court properly suppressed his statements.

¶ 81. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

Justice Roggensack, in an obfuscated attempt to avoid interpreting the Wisconsin Constitution, rests on an interpretation of Montejo v. Louisiana, 556 U.S._, 129 S. Ct. 2079 (2009). I agree with Justice Crooks that her interpretation lacks foundation in the text of the decision.

I further agree with Justice Crooks's dissent that a determination of an accused's constitutional rights is tethered to the text of a constitution, not to "fundamental constitutional principles" or "sound policy" as Justice Roggensack asserts in ¶¶ 44-49. There is neither support for, nor a need for, the concoction of constitutional principles and policy unmoored from the solemn constitutional guaranties the people of Wisconsin ensured for themselves. See Justice Roggensack's opinion, ¶¶ 44-49.

In avoiding interpreting the Wisconsin Constitution, Justice Roggensack rests on unmoored principles of public policy. It has been observed that public policy "is a very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from sound law." Richardson v. Mellish, 130 *654Eng. Rep. 294, 303 (1824). I heed that warning and avoid riding that unruly horse. Instead I base this concurrence on the Wisconsin Constitution and this Court's long-standing and cherished tradition of interpreting the Wisconsin Constitution to protect an accused's meaningful right to counsel to ensure the integrity of our system of justice.

Justice Roggensack's view that our court's interpretation of the federal Constitution in State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, is in reality an interpretation of the state constitution is erroneous, see Justice Crooks's dissent, ¶¶ 136-137, and contravenes the United States Supreme Court's doctrine of "adequate and independent state ground[s]." Michigan v. Long, 463 U.S. 1032, 1035, 1040 (1983).

The interpretation of an accused's right to counsel under the Wisconsin Constitution is not based on sound policy or the common law unmoored from the constitutional guaranties the people of Wisconsin ensured for themselves through the Wisconsin constitution.

State v. Dagnall, 2000 WI 82, ¶¶ 52-53, 236 Wis. 2d 339, 612 N.W.2d 680.

"The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled." Montejo, 129 S. Ct. at 2085.

Id.

Montejo also effectively overruled State v. Hornung, 229 *656Wis. 2d 469, 600 N.W.2d 264 (Ct. App. 1999), in which the court of appeals determined that strict requirements of "unequivocally and unambiguously" asserting the right to counsel, as determined under the Fifth Amendment, were not the appropriate requirements under the Sixth Amendment. The Hornung court, relying upon Michigan v. Jackson, 475 U.S. 625, 631-32 (1986), determined that greater leeway was afforded a charged defendant in asserting the right to counsel.

This court referred to the Hornung decision in State v. Ward, 2009 WI 60, ¶ 43 n.5, 318 Wis. 2d 301, 767 N.W.2d 236, in summing up Wisconsin precedent regarding a charged defendant's invocation of the right to counsel under the Sixth Amendment. In Ward, Justice Crooks, in dissent, lamented the artificial line-drawing between the protections of the Fifth and Sixth Amendments. I agree with Justice Crooks that the protections for the right of counsel should be same for the Fifth and Sixth Amendments. Unlike Justice Crooks, I would keep the stronger protections rather than drop down to the weaker protections. Nevertheless, the Supreme Court has interpreted the United States Constitution, and this court is bound by that determination.

See State v. Jennings, 2002 WI 44, ¶ 3, 252 Wis. 2d 228, 647 N.W.2d 142.

Forbush's Petition for Review at 2; Brief and Appendix of Defendant-Respondent-Petitioner at 1.

Brief and Appendix of Defendant-Respondent-Petitioner at 23-24.

Montejo, 129 S. Ct. at 2089 (emphasis in original).

The United States Supreme Court has explicitly acknowledged this authority on numerous occasions, even going so far as offering invitations to state courts to do so on many occasions, just as Justice Scalia has in Montejo. See, e.g., Montejo, 129 S. Ct. at 2089 ("If a State wishes to abstain from requesting interviews with represented defendants when counsel is not present, it obviously may continue to do so" (emphasis in original).); Oregon v. Hass, 420 U.S. 714, 719 (1975) ("[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards" (emphasis in original).); Oregon v. Mathiason, 429 U.S. 492, 499 (1977) ("It is therefore important to note that the state courts remain free, in interpreting state constitutions, to guard against the evil clearly identified by this case.") (Marshall, J., dissenting); Lego v. Twomey, 404 U.S. 477, 489 (1972) ("Of course, the States are *658free, pursuant to their own law, to adopt a higher standard."). For other authority stating the same proposition of law, see State v. Knapp (Knapp II), 2005 WI 127, ¶ 57, 285 Wis. 2d 86, 700 N.W.2d 899; id,., ¶¶ 85-86, (Crooks, J., concurring).

The Wisconsin Supreme Court has "a long history of recognizing the vitality of the Declaration of Rights of the Wisconsin Constitution. . .." State v. Pallone, 2000 WI 77, ¶ 92, 236 Wis. 2d 162, 613 N.W.2d 568 (Abrahamson, C.J., dissenting). See, e.g., Jokosh v. State, 181 Wis. 160, 193 N.W. 976 (1923); Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923); State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899; see also John Sundquist, Construction of the Wisconsin Constitution— Recurrence to Fundamental Principles, 62 Marq. L. Rev. 531 (1979); Eric Klumb, Comment, The Independent Application of State Constitutional Provisions to Questions of Criminal Procedure, 62 Marq. L. Rev. 596 (1979); Junaid H. Chida, Comment, Rediscovering the Wisconsin Constitution: Presentation of Constitutional Questions to State Courts, 1983 Wis. L. Rev. 483.

For a discussion of other state courts interpreting their own constitutions rather than viewing the state constitution as a restatement of the federal Constitution, see Knapp II, 285 Wis. 2d 86, ¶¶ 87-91 (Crooks, J., concurring).

McCauley v. Tropic of Cancer, 20 Wis. 2d 134, 139, 121 N.W.2d 545 (1963).

State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977).

State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680.

Hornung v. Hornung, 229 Wis. 2d 469, 477-80, 600 N.W.2d 264 (Ct. App. 1999).

State v. Ward, 2009 WI 60, ¶ 43 n.5, 318 Wis. 2d 301, 767 N.W.2d 236.

Dagnall, 236 Wis. 2d 339, ¶ 4.

Carpenter v. Dane County, 9 Wis. 274 (1859).

Justices Kennedy and O'Connor concurred in the judgment, agreeing with the plurality that admission of nontestimonial physical fruits does not run the risk of admitting into trial an accused's coerced incriminating statements against himself. United States v. Patane, 542 U.S. 630, 645 (2004).

Wisconsin v. Knapp, 542 U.S. 952 (2004) (vacating this court's decision on Fifth Amendment grounds in State v. Knapp (Knapp I), 2003 WI 121, 265 Wis. 2d 278, 666 N.W.2d 881).

State v. Knapp (Knapp II), 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899.

Article I, Section 8 of the Wisconsin Constitution provides: "No person. . . may be compelled in any criminal case to be a witness against himself or herself."

State v. Jennings, 2002 WI 44, ¶ 6, 252 Wis. 2d 228, 647 N.W.2d 142.

Knapp II, 285 Wis. 2d 86, ¶¶ 79-83.

*662See Knapp II, 285 Wis. 2d 86, ¶ 2 (reinstating all portions of the prior Knapp I decision, 265 Wis. 2d 278, not implicated by the United States Supreme Court's order vacating the decision in light of United States v. Patane, 542 U.S. 630 (2004)).

Miranda v. Arizona, 384 U.S. 436, 466 (1966) (parallel citations omitted).

Carpenter v. Doe, 9 Wis. 274 (1859).