State v. Michael C. Henderson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 16, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1638-CR Cir. Ct. No. 2014CF204

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL C. HENDERSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Jefferson County: RANDY R. KOSCHNICK and JENNIFER L. WESTON,
Judges. Affirmed.

Before Fitzpatrick, P.J., Graham and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1638-CR

¶1 PER CURIAM. Michael Henderson appeals a judgment convicting
him, after a jury trial, of one count of first-degree intentional homicide. He also
appeals an order denying his motion for postconviction relief.1 On appeal,
Henderson argues that his constitutional rights to counsel were violated during
discussions with law enforcement that took place on June 10 and June 13, 2014.
Henderson also argues that his confrontation rights were violated when the circuit
court admitted statements written in a notebook kept by the victim. For the
reasons discussed below, we reject these arguments and affirm the judgment and
order of the circuit court.

BACKGROUND

¶2 Henderson was charged with first-degree intentional homicide for
the death of a woman with whom he had a prior relationship that produced a child.
Initially, when he was contacted by police about the victim’s death, Henderson
claimed that he was at home in Waterloo on the evening the victim disappeared,
and denied any meeting with the victim. Police investigators triangulated
Henderson’s cell phone location and the resulting data showed that he was in
Watertown on the night in question, and not in Waterloo as claimed. On June 10,
2014, Henderson was arrested for obstructing an officer and was transported to the
Watertown police station. The following day, he was charged with first-degree
intentional homicide. Henderson was convicted after a jury trial. The circuit court
sentenced him to life in prison without the opportunity for parole. Henderson’s

1
The Honorable Randy R. Koschnick presided at the trial and entered the judgment of
conviction. The Honorable Jennifer L. Weston entered the order denying Henderson’s motion for
postconviction relief.

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motion for a new trial based on newly discovered evidence was denied after
multiple evidentiary hearings. This appeal follows.

DISCUSSION

¶3 On appeal, Henderson challenges the circuit court’s rulings on
several evidentiary matters. He challenges the circuit court’s admission of
statements he made to law enforcement on June 10, 2014, and June 13, 2014.
Henderson also challenges the court’s admission of statements written in a
notebook kept by the victim.

¶4 We will first address Henderson’s argument that his statements to
police on June 10 and June 13, 2014, should have been suppressed because police
violated his Fifth and Sixth Amendment rights to counsel. See U.S. CONST.
amend. V, VI. A circuit court’s decision on a motion to suppress evidence
presents a mixed question of fact and law. See State v. Casarez, 2008 WI App
166, ¶9, 314 Wis. 2d 661, 762 N.W.2d 385. We do not reverse the circuit court’s
factual findings unless clearly erroneous, but the application of constitutional
principles to those findings is reviewed de novo. See id.

Statements from June 10, 2014

¶5 Sergeant David Brower testified at the suppression motion hearing
that, on June 10, 2014, at around 10:00 a.m., he followed Henderson, who was
riding in a vehicle. The vehicle stopped at an intersection, and Henderson got out
and approached Brower. Brower advised Henderson that police were “looking to
speak with him voluntarily.” Henderson stated that he wanted an attorney.
Brower told Henderson that Brower had probable cause to arrest him for
obstruction, and placed Henderson under arrest. Henderson was then transported

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to the Watertown Police Department. Later that day, Brower observed another
police officer, Mike Beisbier, read Henderson his Miranda rights.2

¶6 Beisbier testified that, upon arrival at the police department,
Henderson was taken to a conference room. Beisbier further testified that he and
Brower shut the door, left Henderson alone in the room, and “basically stopped
talking to him” based on the fact that Henderson had asked for an attorney.
According to Beisbier, Henderson became agitated. The police captain and police
chief expressed fear that Henderson would hurt himself, and directed that he be
taken to the booking area. Beisbier and Brower advised Henderson that all he had
to do was be fingerprinted and photographed and then he would be released.
Beisbier testified that Henderson initially refused to walk and had to be carried to
the booking area and, once there, refused to comply. Upon instruction from the
police captain and police chief, Henderson was placed in a cell for “[a]s long as it
took to fingerprint him and photograph him” and then he was to be released.
Henderson continued to act agitated and, at one point, flooded the cell by clogging
the sink. Beisbier testified that he had been observing Henderson in the cell via
video camera, but that Henderson eventually put a wad of toilet paper over the
camera. Beisbier felt he needed to go and physically check on Henderson “to
make sure he was not hurting himself or damaging anything in the cell.” When
Beisbier went to the cell area, Henderson stated that he wanted to talk to him. One
of the other officers asked Henderson if he was “reinitiating” discussion, and
Henderson confirmed that he was. Beisbier asked Henderson about wanting a
lawyer. Henderson said: “Fuck the lawyer. I want to talk to you now.”

2
Miranda v. Arizona, 384 U.S. 436 (1966).

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¶7 Beisbier testified that he then went with Henderson to an interview
room and immediately read Henderson his Miranda rights. Henderson signed a
form indicating that he had been read his Miranda rights, understood those rights,
and was waiving them. Henderson signed the form at 4:01 p.m. Beisbier went on
to interrogate Henderson until Henderson asked again to speak to a lawyer.
Beisbier then stopped questioning Henderson and returned him to his cell because
he was “still uncooperative.” Beisbier ordered dinner for Henderson and, when
Beisbier brought the meal to him, Henderson asked to speak to Beisbier again
about the obstruction charges. Beisbier left the cell while Henderson finished his
meal and then came back and asked if Henderson still wanted to speak with him.
Beisbier explained that he would have to read the Miranda warnings again, and
Henderson confirmed that he understood. Beisbier and Henderson then went back
to the same interview room, where Beisbier read and had Henderson sign a
Miranda waiver form at 8:01 p.m. After about fifteen minutes, Henderson said he
wanted to be done with the interview and go back to his cell.

¶8 The circuit court ruled that the statements made by Henderson to
Beisbier during the two interview segments on the evening of June 10, 2014, were
admissible. Applying the two-step standard of review for suppression rulings, we
first review the circuit court’s findings of fact for clear error. See Casarez,
314 Wis. 2d 661, ¶9. Here, the court based its ruling on the testimony heard at the
suppression motion hearings, as well as on Henderson’s demeanor as observed on
the video recordings of the interviews. The court observed that Henderson
appeared to be “relatively strong and committed in the face of law enforcement
interrogation” and even, at some points, “appeared to be attempting to manipulate
law enforcement.” The court also stated specifically that it found the testimony of
Brower to be credible. Brower testified that no interrogation of Henderson took

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No. 2018AP1638-CR

place from the time of the arrest until he was later given Miranda warnings. The
court was not as explicit regarding its credibility findings as to Beisbier, but it can
be inferred from the court’s reasoning on the record that it found Beisbier’s
testimony regarding the events of June 10, 2014, to be credible as well. In
assessing the voluntariness of Henderson’s statements, the court referenced
Beisbier’s testimony that one of the reasons for the length of Henderson’s
detention on June 10, 2014, was that Henderson refused to comply with the
booking procedure. The court found the police testimony on this point to be
credible. Each of the circuit court’s findings is supported by the record. We
therefore uphold those findings, as they are not clearly erroneous, and go on to
apply independently the relevant constitutional principles to those findings. See
Casarez, 314 Wis. 2d 661, ¶9.

¶9 Henderson argues that his Fifth Amendment right to have counsel
present during his custodial interviews on June 10, 2014, was violated. It is
undisputed that Henderson stated at more than one point on June 10, 2014, that he
wished to consult with a lawyer. Once an accused invokes his right to counsel
during a custodial interview, questioning must cease until counsel has been made
available to the accused, “unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981). An accused’s request for counsel “must be
unambiguous—in other words, the suspect 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.”
State v. Conner, 2012 WI App 105, ¶18, 344 Wis. 2d 233, 821 N.W.2d 267
(quoted source and internal quotation marks omitted). The reviewing court must
undertake a two-part inquiry. First, we must “determine whether the accused

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actually invoked his right to counsel.” Id., ¶16. Then, if the accused did indicate
he wanted an attorney, we must “determine whether he (a) initiated further
discussions with the police, and (b) knowingly and intelligently waived the right
he had invoked.” Id.

¶10 As discussed above, the record reflects that Henderson invoked his
right to counsel and that, after he did so, law enforcement stopped questioning
him. This is consistent with Miranda v. Arizona, 384 U.S. 436 (1966), which
requires that, “[i]f the individual states that he wants an attorney, the interrogation
must cease until an attorney is present.” Id. at 474. Henderson twice initiated
discussions with Officer Beisbier on the evening of June 10, 2014. On both
occasions, Henderson signed a waiver of his rights under Miranda. A Miranda
waiver is voluntary if it is “‘the product of a free and deliberate choice rather than
intimidation, coercion, or deception.’” State v. Hambly, 2008 WI 10, ¶91,
307 Wis. 2d 98, 745 N.W.2d 48 (quoted source omitted). There is nothing in the
record to suggest that Beisbier intimidated, coerced, deceived, or otherwise
pressured Henderson to speak with him. Although Henderson was placed in a jail
cell for a portion of his time at the police department, the record reflects that his
containment was the result of his failure to comply with booking procedures, and
not related to his willingness or unwillingness to give a statement to law
enforcement. On the two different occasions that Beisbier sat down with
Henderson in the conference room on the evening of June 10, 2014, Beisbier
terminated the conversation as soon as Henderson said he no longer wanted to
talk. In light of all of the above, we are satisfied that Henderson’s Fifth
Amendment rights were not violated during his interactions with law enforcement
on June 10, 2014, such that the circuit court properly denied Henderson’s
suppression motion.

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No. 2018AP1638-CR

Statements from June 13, 2014

¶11 Henderson’s second argument on appeal concerns statements he
made to law enforcement on June 13, 2014, after he had been formally charged
with the victim’s homicide and was represented by an attorney. On June 13, 2014,
while Henderson was in custody, he wrote a note addressed to the Jefferson
County sheriff’s department requesting to speak with his attorney and with law
enforcement regarding a “very dangerous matter.” The note stated that Henderson
believed his family was in danger and requested immediate action. Detective
Leah Meyer was working in her office at the time and received the note. Meyer
alerted her supervisor. Meyer then had Henderson brought up from the jail and sat
down with him in the law library. According to Meyer’s hearing testimony, she
did not know who Henderson’s attorney was. Meyer testified that she was not
there to question Henderson about his case, but to address the dangerousness of
the situation. Meyer identified herself and read Miranda warnings to Henderson.
Meyer testified that Henderson “waived his rights” and agreed to speak to her
“without representation.” Henderson then told Meyer that he had been threatened
by a gang and, when she asked for more detail, Henderson said he wanted his
attorney present. Meyer told Henderson that she may not be able to reach his
attorney because it was a Friday evening.

¶12 Meyer testified that she acquired the name of Henderson’s attorney
and told Henderson that she had a possible after-hours number for the attorney.
Meyer told Henderson he should start thinking about what he was going to do if
she was unable to reach his attorney. Meyer then stopped speaking with
Henderson and returned him to the jail. She testified that her conversation with
Henderson lasted about ten minutes. Meyer testified that she was unable to reach
Henderson’s attorney and therefore left a detailed voice message for Henderson’s

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No. 2018AP1638-CR

attorney on his personal cell phone. Meyer also contacted Sergeant Brower of the
Watertown Police Department to “go over this gang information.”

¶13 Meyer then went back to the jail and informed Henderson that she
had left a voice mail message for his attorney. Henderson asked Meyer if police
officers could drive by Henderson’s home to check on his family’s welfare.
Meyer said it could be arranged, but that she “wouldn’t really have any
information to give” the officers. Meyer testified that she told Henderson that, if
he had any information that would help them look for something in particular, he
should let her know. According to Meyer’s testimony, Henderson then said that
he would talk. Meyer confirmed that what Henderson meant was that he would
speak with law enforcement without his attorney present, and Henderson
“confirmed that’s what he wanted to do.” Meyer informed Henderson that “it was
his right” not to speak with law enforcement any further, and that she could send a
squad past his house, to check the area in general, without any further details.
Again, Henderson confirmed that he wanted to proceed to discussions without an
attorney. Because Meyer was unfamiliar with the case, she contacted the
Watertown Police Department.

¶14 Sergeant Brower then came to the Jefferson County sheriff’s office
and interviewed Henderson in the detectives’ interview room. Brower explained
that Henderson did not have to speak without his attorney present. Henderson
confirmed again that he still wanted to talk without his attorney there. Brower
read Henderson a notification of his Miranda rights, and Henderson signed a
waiver form. Henderson went on to tell Brower that he and the victim had met up,
and that they were attacked by men who he believed were gang members.
According to Henderson, one of the men shot the victim as she tried to drive away.
Henderson stated that he himself was able to escape by rolling under his car and

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No. 2018AP1638-CR

then fleeing. Brower testified at trial that, at the conclusion of the interview with
Henderson on June 13, 2014, he told Henderson that his account was not
believable for “many, many reasons.”

¶15 The circuit court ruled that the statements given by Henderson to law
enforcement on June 13, 2014, were admissible. The court found that the
statements were made after Henderson had been given Miranda warnings and
after he had been told repeatedly that he was not required to speak without his
attorney present. The court stated that it found the testimony of Meyer and
Brower to be “believable, internally consistent, and consistent with other evidence
in the case.” Generally, we will not disturb credibility findings on appeal, and we
are not persuaded that we should do so here. See State v. Wachsmuth, 166 Wis.
2d 1014, 1023, 480 N.W.2d 842 (Ct. App. 1992) (“It is generally not the province
of the reviewing court to determine issues of credibility.”). The circuit court
further found that there was nothing about the statements Henderson made to
Brower that would lead the court to conclude that Brower violated Henderson’s
right to counsel. We are satisfied that the circuit court’s findings as to the June 13,
2014 statements are not clearly erroneous, as they are supported by the record.
We uphold those factual findings and proceed to our independent review of the
relevant constitutional principles. See Casarez, 314 Wis. 2d 661, ¶9.

¶16 After a criminal complaint has been filed, “the Sixth Amendment
guarantees a defendant the right to have counsel present at all critical stages of the
criminal proceedings.” State v. Stevens, 2012 WI 97, ¶66, 343 Wis. 2d 157,
822 N.W.2d 79 (quoted sources and internal quotation marks omitted). However,
a defendant “can waive the Sixth Amendment right to counsel, even if already
represented, without speaking to counsel about the waiver.” Id., ¶56.

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¶17 Henderson argues on appeal that he unequivocally invoked his right
to counsel when he stated in the note delivered to Detective Meyer on June 13,
2014, that he wanted to speak with his attorney, and that the Miranda warnings he
was given after he delivered the note were invalid. The State asserts that
Henderson’s note was too equivocal to constitute an invocation of his Sixth
Amendment right to counsel. We agree with the State that Henderson’s request
for counsel in his note was not unambiguous or unequivocal. The note stated that
Henderson wanted to talk to his attorney “as well as talk to the Sheriff Dept.” but
it also conveyed a sense of urgency as to his fears regarding his family’s safety. In
Davis v. United States, 512 U.S. 452 (1994), the Supreme Court recognized that
“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.” Id. at 461.

¶18 As discussed above, upon receiving the note, Meyer made contact
with Henderson to get further details “so as to take any appropriate law
enforcement action to keep his family safe.” She gave Henderson Miranda
warnings at the beginning of her contact with him. Henderson waived his rights
and agreed to speak with her. Meyer obtained the name of Henderson’s attorney.
She explained that she would attempt to contact the attorney, but that she may not
be able to reach him immediately. Meyer advised Henderson to think about what
he wanted to do if the attorney was not immediately available. When Meyer
returned to the jail after leaving a voice message for Henderson’s attorney, Meyer
again told Henderson that he had a right not to speak further without his attorney
present. Henderson confirmed that he wanted to talk without his attorney present.
Henderson went on to speak with Sergeant Brower, who again gave Henderson
Miranda warnings and confirmed with Henderson that it was his desire to talk

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without his attorney present. Henderson again signed a waiver of his rights.
There is nothing in the record to suggest that Henderson did not understand the
rights he was waiving or that he waived them as a result of intimidation, coercion,
or deception. See Hambly, 307 Wis. 2d 98, ¶91. “[A]fter a knowing and
voluntary waiver of the Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an attorney.” Davis,
512 U.S. at 461.

¶19 In light of all of the above facts, we are satisfied that Henderson’s
waiver of his Miranda rights to remain silent and to have counsel present during
his discussions with law enforcement on June 13, 2014, was “‘the product of a free
and deliberate choice.’” Hambly, 307 Wis. 2d 98, ¶91 (quoted source omitted).
Accordingly, we conclude that the circuit court properly denied Henderson’s
motion to suppress his statements given to law enforcement on June 13, 2014.

Written Statements from the Victim

¶20 Henderson’s third argument on appeal concerns the circuit court’s
admission of three statements written in a notebook kept by the victim. Henderson
argues that the statements should have been excluded as inadmissible hearsay. He
further argues that the statements are testimonial in nature and that their admission
violated his confrontation rights under the Sixth Amendment and Crawford v.
Washington, 541 U.S. 36, 42 (2004). The State counters that the statements are
non-testimonial and that, even if they were testimonial, they would nevertheless be
admissible under the doctrine of forfeiture by wrongdoing. We need not decide
whether the doctrine of forfeiture by wrongdoing applies in this case because we
conclude that the written notebook statements are non-testimonial in nature.

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No. 2018AP1638-CR

¶21 In Crawford, the Supreme Court concluded that the “principal evil at
which the Confrontation Clause was directed was the civil-law mode of criminal
procedure, and particularly its use of ex parte examinations as evidence against the
accused.” Id. at 50. Therefore, not all hearsay evidence implicates the
Confrontation Clause’s core concern, only that which is testimonial in nature. See
id. at 51. A testimonial hearsay statement is admissible against a criminal
defendant only if the witness who made the statement is unavailable and the
defendant had a prior opportunity to cross-examine the witness. Id. at 59. “A
statement is testimonial only if in light of all the circumstances, viewed
objectively, the primary purpose of the conversation was to create an out-of-court
substitute for trial testimony.” State v. Reinwand, 2019 WI 25, ¶24, 385 Wis. 2d
700, 924 N.W.2d 184 (quoted sources and internal quotation marks omitted).

¶22 Here, the written statements at issue were from a notebook kept by
the victim that was found in a closet in her home. The State argued that it did not
appear that the victim had been sharing the notebook with anyone. The notebook
contained different types of writings, including budget and financial information,
contact information, and personal notes. The circuit court concluded that the
notebook entries were non-testimonial.

¶23 Whether to admit hearsay statements under a hearsay exception is a
discretionary determination left to the circuit court. See State v. Weed, 2003 WI
85, ¶9, 263 Wis. 2d 434, 666 N.W.2d 485. Here, the circuit court discussed and
applied the appropriate legal standard for determining whether a statement is
testimonial. The court concluded that there was nothing in the record to suggest
that the notebook entries were made in anticipation of being used in the
investigation or prosecution of a crime. Because the court employed a logical
rationale based on the correct legal principles and the facts of record, we are

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satisfied that it properly exercised its discretion in concluding that the notebook
statements were non-testimonial. See Kohl v. DeWitt Ross & Stevens, 2005 WI
App 196, ¶28, 287 Wis. 2d 289, 704 N.W.2d 586. Accordingly, the court’s
admission of the notebook statements did not violate Henderson’s confrontation
rights.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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