State v. Michael K. Brooks

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.
July 5, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP678-CR Cir. Ct. No. 2017CF3588

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL K. BROOKS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
MARK A. SANDERS, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

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. 2022AP678-CR

¶1 PER CURIAM. Michael K. Brooks appeals a judgment, entered
after a bench trial, convicting him of first-degree sexual assault of a child under
thirteen years of age. He maintains that the circuit court erred when it denied his
motion to suppress a portion of his custodial statement because, he claims, the
custodial interrogation continued after he invoked his right to counsel. We conclude
that Brooks did not unequivocally invoke his right to counsel for purposes of a
custodial interrogation when he said that he wanted to talk to a lawyer in connection
with the execution of a search warrant for his DNA. We further conclude that, even
assuming that the circuit court erroneously denied Brooks’s suppression motion,
any error was harmless beyond a reasonable doubt. We therefore affirm.

Background

¶2 On August 3, 2017, Detective Steve Wells questioned Brooks while
he was in custody following an allegation that on July 23, 2017, he sexually
assaulted a nine-year-old girl, R.G., and her six-year-old sister, N.F. The
interrogation was audio-recorded and took place in two parts that were separated by
a break of four unrecorded minutes. The State subsequently charged Brooks with
two counts of sexual assault of a child younger than thirteen years old. Brooks, who
represented himself in the circuit court proceedings, moved to suppress the second
part of the custodial interview on the ground that it continued after he had invoked
his right to counsel. The circuit court conducted a hearing at which Wells was the
sole witness. We take the facts regarding the custodial interview from the circuit
court’s findings and the audio recording in the record.

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No. 2022AP678-CR

¶3 At the outset of the interview, Wells orally provided Brooks with the
warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).1 Brooks responded
that he would talk. During the first part of the interview, Wells showed Brooks a
portion of a surveillance video recorded from a Milwaukee building on the 2400
block of West Mitchell Street late in the evening of July 23, 2017. Brooks
acknowledged that he was the adult male seen on the video walking with two little
girls. Brooks also admitted to going onto the roof of a building in the area with the
two girls, but he said that no sexual acts took place.

¶4 Approximately forty minutes into the interview, Wells served Brooks
with a search warrant for a buccal swab to collect his DNA. Brooks reviewed the
warrant, and Wells asked Brooks whether he wanted Wells to read the warrant
aloud. Brooks said he knew that Wells was “doing [his] job,” then added: “I know
I’ll be going to court anyway man so I prefer, I prefer to just talk to my attorney
about all this.” After a pause, Wells stated: “Time is now 11:25 a.m.”

¶5 Brooks next inquired about the identity of the court official who
signed the warrant, complained that he was submitting to the buccal swab “under
duress,” and continued to ask whether he could have a lawyer present for the
procedure. Wells answered “no,” and explained that Brooks was compelled by the
warrant to permit the swab.2 Brooks ultimately cooperated with the procedure.

1
Before questioning a suspect in custody, the police must inform the person of, inter alia,
the right to remain silent, the fact that any statements made may be used against the person in a
court of law, the right to have an attorney present during questioning, and the right to have an
attorney appointed if the person cannot afford one. See Miranda v. Arizona, 384 U.S. 436, 478-79
(1966).
2
Brooks did not suggest in the circuit court proceedings and does not suggest now that he
was entitled to have counsel present when police swabbed him pursuant to the warrant.

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No. 2022AP678-CR

¶6 Wells continued to record his interaction with Brooks throughout the
execution of the search warrant. While Wells was completing the swabbing process,
Brooks said that he was “just trying to talk to [Wells],” but the detective said that
the conversation was over because Brooks had requested a lawyer. After collecting
the buccal swab, Wells stated that the time was 11:30 a.m., and then he turned off
the recording device.

¶7 Wells testified at the suppression hearing that after he stopped
recording, he prepared to leave the interview room, but Brooks “really was begging
[Wells] to stay.” Wells decided that he would do so.

¶8 Wells resumed recording, and he began this portion of the interview
by stating: “the time is 11:34 a.m.” Wells next said that Brooks “wanted to talk off
the record but I explained to him that he asked for a lawyer and I don’t talk to people
after they ask for a lawyer[.] Mr. Brooks told me that he wanted to talk without a
lawyer present. Is that true?” Brooks responded: “I will talk.” Brooks also said
that it was his idea to talk and that he had not been forced or threatened. He
explained that he “wasn’t sure after getting this warrant if [he] could have a lawyer
present ... and that’s what made [him] ask for a lawyer.” Brooks next reiterated that
he “want[ed] to continue [the] conversation” and did not want a lawyer present.
During the next forty minutes, Brooks made statements describing his sexual
contact with R.G. on a rooftop.

¶9 The circuit court found that Wells intended to terminate the interview
at 11:25 a.m., execute the search warrant, and then leave the room because “Wells
thought that [Brooks] was invoking his right to an attorney.” Based on the recorded
interview and Wells’s testimony, however, the circuit court went on to find that
Brooks had in fact expressed confusion about the search warrant procedure and a

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No. 2022AP678-CR

preference to discuss the warrant with counsel. The circuit court further found that
during the four minutes that the recording device was turned off, Brooks begged
Wells to stay, and Wells eventually agreed.

¶10 The circuit court concluded that Brooks had not unequivocally
invoked his right to counsel for purposes of a custodial interrogation. Therefore,
although the detective had initially intended to stop questioning Brooks when he
asked about an attorney, Wells was not required to terminate the interview or to take
any other prophylactic step before continuing the interrogation. Accordingly, the
circuit court denied the motion to suppress.3

¶11 The charges proceeded to a bench trial at which only the State
presented evidence. R.G. testified and described how she and her sister N.F.
followed Brooks to a rooftop on Mitchell Street where Brooks sexually assaulted
R.G. A police officer testified that he collected the clothes that R.G. and N.F. were
wearing when they encountered Brooks. The items included R.G.’s romper. A
DNA analyst testified that she found sperm on the romper and developed the DNA
profile of the male who deposited that sperm. The analyst also developed Brooks’s
DNA profile from his buccal swabs, and she determined that Brooks’s DNA profile
matched the profile of the male who deposited sperm on R.G.’s romper. The analyst
then testified that Brooks was the source of the DNA on the romper, and she
explained that she was able to say so because his profile was sufficiently rare that

3
The circuit court also found that even if Brooks had invoked his right to counsel during
the swabbing procedure, he reinitiated the questioning within four minutes. The circuit court
therefore again concluded that Brooks was not entitled to an order suppressing his ensuing
statements. On appeal, the parties debate the validity of that analysis. Because we agree with the
circuit court’s conclusion that Brooks did not invoke his right to counsel, we see no need to discuss
the circuit court’s alternative basis for denying the suppression motion. See Barrows v. American
Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (“An appellate court need
not address every issue raised by the parties when one issue is dispositive.”).

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No. 2022AP678-CR

“you would have to go through approximately seven trillion plus people before you
found that DNA profile again.” Finally, the State presented the July 23, 2017,
surveillance video of Brooks walking at night with two little girls, including one
who was wearing a romper, and the audio recording of Brooks’s custodial interview
with Wells.

¶12 At the conclusion of the bench trial, the circuit court found Brooks
guilty of sexually assaulting R.G. in violation of WIS. STAT. § 948.02(1)(e) (2017-
18).4 Brooks appeals, challenging the order that denied his suppression motion.

Discussion

¶13 Review of an order denying suppression of evidence presents a
question of constitutional fact that we address using a two-step inquiry. See State
v. Delap, 2018 WI 64, ¶¶26-27, 382 Wis. 2d 92, 913 N.W.2d 175. We uphold the
circuit court’s findings of historical fact unless they are clearly erroneous, and then
we independently apply constitutional principles to those facts. See id., ¶27.

¶14 Brooks contends that the circuit court should have suppressed a
portion of his custodial statement on the ground that he made the statement after
invoking his right to counsel. A suspect facing custodial interrogation has
constitutional rights to counsel and to remain silent. See State v. Abbott, 2020 WI
App 25, ¶30, 392 Wis. 2d 232, 944 N.W.2d 8. Pursuant to Miranda, the police must
inform the suspect of those rights before conducting a custodial interrogation. See

4
At the close of the evidence, Brooks moved to dismiss the charge that he sexually
assaulted N.F., and the circuit court granted his motion, finding that the State had not presented any
evidence to support the charge.

All subsequent references to the Wisconsin Statutes are to the 2021-22 version unless
otherwise noted.

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No. 2022AP678-CR

Abbott, 392 Wis. 2d 232, ¶30. Incriminating statements obtained in violation of
Miranda normally must be suppressed. See State v. Dobbs, 2020 WI 64, ¶52, 392
Wis. 2d 505, 945 N.W.2d 609. A suspect who has received proper warnings,
however, may validly waive the rights to counsel and to remain silent and choose to
answer questions. See Abbott, 392 Wis. 2d 232, ¶¶30-31.

¶15 Brooks does not dispute that at the outset of the custodial interview,
he received the warnings required by Miranda, nor does he dispute that he waived
his rights and agreed to talk to Wells. Brooks contends, however, that he invoked
his right to counsel while the interrogation was underway and that questioning
therefore should have terminated.

¶16 “Among the most important conclusions in Miranda is that once an
individual invokes the right to counsel, interrogation must cease.” State v. Stevens,
2012 WI 97, ¶48, 343 Wis. 2d 157, 822 N.W.2d 79. However, “[t]o invoke the right
to counsel, a suspect must make an ‘unambiguous and unequivocal request for
counsel[.]’” Abbott, 392 Wis. 2d 232, ¶32 (citation and one set of brackets omitted).
Moreover, the right to counsel “that is the subject of Miranda ... requires, at a
minimum, some statement that can reasonably be construed to be an expression of
a desire for the assistance of an attorney in dealing with custodial interrogation by
the police.” State v. Coerper, 199 Wis. 2d 216, 223, 544 N.W.2d 423 (1996)
(citation omitted). A defendant may thus invoke the right to counsel for one purpose
without also invoking it for other purposes. See, e.g., Connecticut v. Barrett, 479
U.S. 523, 529 (1987) (holding that the police are not required to cease asking
questions orally when the suspect requests counsel only for the purposes of making
a written statement).

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No. 2022AP678-CR

¶17 We use an objective test to assess whether a suspect unequivocally
invoked the right to counsel for purposes of a custodial interrogation. See State v.
Cummings, 2014 WI 88, ¶50, 357 Wis. 2d 1, 850 N.W.2d 915. If the suspect’s
statement is subject to “reasonable competing inferences,” then it is not unequivocal
and therefore does not require the police to terminate the interrogation. See id., ¶51
(citation omitted). Whether an inference is reasonable is a question of law. State
ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 235, 369 N.W.2d 743 (Ct. App.
1985).

¶18 Here, the circuit court found that Brooks did not make an unequivocal
request for counsel in dealing with the custodial interrogation. See Coerper, 199
Wis. 2d at 223. The circuit court instead found that when Brooks said he “preferred
to talk to [his] attorney about ‘all of this,’ ‘all of this’ referred to the context of that
conversation,” namely, the warrant for a buccal swab that Wells was in the process
of executing. The circuit court further found that Brooks’s statements and inquiries
while Wells was conducting the swabbing process expressed Brooks’s confusion
about the warrant rather than a request for counsel to assist with questioning.

¶19 Brooks relies on the following portion of his interaction with Wells to
demonstrate an unequivocal request for counsel during the interrogation:5

At 44:21, the defendant begins to discuss whether or not he
should have a lawyer in connection with the search warrant
being executed. The defendant says, I don’t have to get a
lawyer to do this even? Detective Wells says no. The
defendant responds, can I get a lawyer to do this. The
response is no. The defendant says, I can’t get a lawyer to
be present when you swab me? The response is no, no, I can
do this now.

5
We reproduce the discussion between Brooks and Wells as set forth in the circuit court’s
decision from the bench resolving the suppression motion. Brooks does not dispute the accuracy
of the circuit court’s review.

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No. 2022AP678-CR

44:33, I’m saying can I have a lawyer present? Detective
Wells, no.

Defendant, Not at all?

The response is, not for this, no. If it was consensual then
you could have a lawyer.

Brooks argues: “Mr. Brooks’ ‘Not at all?’ would have been seen by a reasonable
police officer as expanding the need for a lawyer beyond simply watching the DNA
collection.”

¶20 The question, however, is whether Brooks’s words were unequivocal.
They were not. Brooks’s question simply did not constitute a clear request to have
an attorney present for custodial questioning. Moreover, as the circuit court found,
the question was part of the discussion that Brooks was having with Wells about
whether a lawyer was required or could be made available for the search warrant
procedure. Brooks’s vague follow-up inquiry did not unambiguously redirect that
discussion. Accordingly, the circuit court’s findings regarding the meaning of this
inquiry and Brooks’s surrounding statements constitute reasonable inferences that
the circuit court properly could draw from the evidence presented. See Shanks, 124
Wis. 2d at 235.

¶21 Brooks next argues that, because Wells initially believed that Brooks
had “asked for a lawyer,” we must conclude that Brooks unequivocally invoked his
right to counsel for purposes of an interrogation. A contrary conclusion, Brooks
asserts, requires a determination that “Wells’s understanding was unreasonable.”
We disagree. A suspect’s statements regarding an attorney are equivocal, and
therefore insufficient to require the police to terminate an interrogation, if those
statements are subject to reasonable competing inferences. See Cummings, 357
Wis. 2d 1, ¶51. That is the situation here. Brooks’s remarks may have allowed

9
No. 2022AP678-CR

more than one reasonable inference, but the record clearly supports a conclusion
that Brooks’s references to an attorney were efforts to determine whether he could
have counsel present when Wells executed the search warrant for a buccal swab.
Because such a conclusion is objectively reasonable, Brooks’s remarks were not
unequivocal statements requiring Wells to end the interrogation. See id.

¶22 In sum, we are satisfied that Brooks did not unequivocally invoke his
right to counsel for purposes of the custodial interrogation. Wells was therefore not
required to stop questioning Brooks. Accordingly, the circuit court properly denied
Brooks’s suppression motion.

¶23 For the sake of completeness, we also observe that, were we to
conclude that the circuit court erred by denying the suppression motion, we would
nonetheless affirm because any error was harmless beyond a reasonable doubt. See
Dobbs, 392 Wis. 2d 505, ¶52 (holding that “[i]incriminating statements made in
violation of Miranda must be suppressed … unless the admission of the statements
was harmless error”). An error is harmless if “it appears ‘beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’” State v.
Harvey, 2002 WI 93, ¶44, 254 Wis. 2d 442, 647 N.W.2d 189 (citations and some
quotation marks omitted). That test is satisfied “if it is ‘clear beyond a reasonable
doubt that a rational jury would have found the defendant guilty absent the error.’”
Dobbs, 392 Wis. 2d 505, ¶68 (citation omitted).

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No. 2022AP678-CR

¶24 Here, of course, the case was not tried to a jury but to the circuit court,
which explained its verdict on the record.6 See WIS. STAT. § 972.02(3). The
explanation demonstrates that the circuit court would have found Brooks guilty even
if the challenged custodial statements had been suppressed.

¶25 The circuit court began by finding that R.G. was credible, and the
circuit court thoughtfully explained the basis for that finding, noting that it turned
not only on the specifics of her allegations but also on the way in which she
responded to questioning and her overall demeanor on the stand. The circuit court
went on to conclude that R.G.’s testimony, in which she identified Brooks and
described how he sexually assaulted her on a rooftop, “by itself would be sufficient”
to prove that Brooks had sexual contact with R.G. This conclusion was legally
unimpeachable. The law is clear that a fact finder is entitled to find a defendant
guilty based on the victim’s testimony alone. See State v. Sharp, 180 Wis. 2d 640,
659, 511 N.W.2d 316 (Ct. App. 1993). To be sure, the circuit court also deemed
Brooks’s custodial statement believable, but the circuit court’s explanation of its
verdict demonstrates that Brooks’s statement was not necessary to prove him guilty.
R.G.’s testimony was enough.

¶26 Moreover, the State’s evidence also included a July 23, 2017
surveillance video that showed Brooks walking at night on West Mitchell Street
with R.G. and her sister; and the State presented expert testimony that Brooks’s
sperm was on the romper that R.G. was wearing when she encountered Brooks that
night. We agree with the State that the totality of the indisputably admissible

6
When, as here, a case is tried to the court, the harmless error analysis is arguably subject
to a less rigorous standard than is set forth in State v. Dobbs, 2020 WI 64, ¶68, 392 Wis. 2d 505,
945 N.W.2d 609. See State v. Harling, 44 Wis. 2d 266, 278, 170 N.W.2d 720 (1969). Because
any error in admitting Brooks’s statement was harmless under Dobbs, we do not consider whether
any erroneous admission would have been harmless under a less exacting analysis.

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No. 2022AP678-CR

evidence of Brooks’s guilt was so powerful that any error in admitting his
challenged confession was harmless beyond a reasonable doubt and did not
contribute to the circuit court’s finding that he was guilty of first-degree sexual
assault of a child. For all the foregoing reasons, we affirm.

By the Court.—Judgment affirmed.

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

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