Appeal from the United States District Court for the Eastern District of Wisconsin. No. 93 C 1175--J. P. Stadtmueller, Chief Judge.
Before POSNER, Chief Judge, and LAY *fn* and ROVNER, Circuit Judges.
Following the denial of a motion to suppress his confession and other incriminating statements he made to police, Larry J. Sprosty pleaded no contest to two counts of first degree sexual assault, two counts of sexual exploitation of a child, and one count of child enticement. Sprosty was sentenced to five years in prison on each count, the terms to run concurrently. The Court of Appeals of Wisconsin affirmed his conviction in an unpublished opinion, and the Supreme Court of Wisconsin denied review. Sprosty then petitioned for a writ of habeas corpus pursuant to 28 U.S.C. sec. 2254. The district court granted Sprosty's petition on the ground that, after placing him under custodial arrest, the police ignored Sprosty's request for an attorney and persisted in interrogating him in violation of his rights under Miranda v. Arizona and Edwards v. Arizona. At the close of a series of suppression hearings, however, the state trial court found that Sprosty had not requested that an attorney be present during the questioning. Having determined that the state court's finding is fairly supported by the record and is thus entitled to a presumption of correctness under 28 U.S.C. sec. 2254(d), and that no other violation of Sprosty's constitutional rights took place, we reverse the judgment below with directions to dismiss the petition.
Sprosty's convictions stem from a series of incidents that took place in November and December 1989, when Sprosty performed sexual acts with two adolescent boys and took pornographic pictures of them. Both of the boys were heavily under the influence of alcohol at the time and may not have been fully conscious. During the late afternoon of January 12, 1990, Lauren Knutson, Roger Lund and Bill Fillback of the Crawford County Sheriff's Department in Wisconsin, Jerry Valley, of the Allamakee County Sheriff's Department in Iowa, and Conservation Warden Dennis Kirschbaum converged upon Sprosty's mobile home in order to execute a search warrant for pornographic pictures and stolen items. When the officers reached the mobile home, they found Sprosty seated in a car in the driveway. Two squad cars pulled into a driveway next to and in front of Sprosty's car, and Chief Deputy Lund's squad car blocked the path from Sprosty's driveway to the street. Deputy Knutson read the search warrant to Sprosty and accompanied Sprosty into the kitchen of the mobile home, where he again read the warrant to Sprosty and informed him of his Miranda rights. Sprosty signed a statement that he had been advised of his rights and understood them. Lund, Sprosty's mother, June Sprosty, and a friend who resided with them, Renee Ingle, were also present. Lund, who was armed and in uniform, remained in the mobile home to keep watch over Sprosty while the other officers searched inside and outside the mobile home. Lund did not assist in the search itself. During the nearly three-hour search and prior to the discovery of the pornographic photographs, Sprosty only left Lund's presence when he accompanied two other officers to a bedroom in the mobile home. (Mar. 1, 1990 Tr. at 46.)
A short time after the police arrived, June Sprosty tried to telephone her attorney, Mark Peterson. Prior to making the call, June testified that she asked Lund whether she could call her attorney, and that Lund had told her to "hang up the phone, shut up and sit down." (Mar. 1, 1990 Tr. at 56.) June also testified that she telephoned Peterson's home only to discover that he was out for the evening. She further testified that Sprosty then asked her to call his lawyer, Thomas Strakeljahn, and that Lund commented that Sprosty did not need a lawyer. (Mar. 1, 1990 Tr. at 56-57.) Her testimony was, however, equivocal as to whether Sprosty made a direct request to Lund to be allowed to call his attorney, or whether Lund merely overheard Sprosty ask his mother to make the call and then tried to dissuade her from doing so. (Mar. 1, 1990 Tr. at 56.) By contrast, Renee Ingle testified that when June asked Lund whether she could call her lawyer, Lund said that she could, but that it would not be necessary. (Mar. 1, 1990 Tr. at 80.) Ingle further testified that Mark Peterson was the only attorney mentioned by name, and that Sprosty asked his mother to call his lawyer, but that Lund then commented that calling a lawyer would be futile in the face of all of the evidence they had against Sprosty. (Mar. 1, 1990 Tr. at 81-82.) When asked on cross-examination whether Sprosty had requested to telephone attorney Strakeljahn, Lund testified, "Oh boy, I can't say that he did or he didn't. I don't remember. The only thing I remember is when June wanted to call an attorney." (Mar. 1, 1990 Tr. at 51.) Neither Lund nor Ingle were directly asked whether Sprosty had stated to Lund (as opposed to his mother) that he wanted a lawyer present. (Mar. 1, 1990 Tr. at 49-51, 81-82.)
During the search, several of the officers repeatedly asked Sprosty where the pornographic pictures were hidden. Deputy Sheriff Jerry Valley testified that he had promised Sprosty that if Sprosty cooperated, burglary charges against him in Minnesota would be dropped. (Mar. 1, 1990 Tr. at 42.) The record is unclear as to whether the officers searched the bedroom of Sprosty's late father before or after Valley made the promise. June Sprosty testified that, upon seeing Knutson remove a pair of slacks from her late husband's closet, she began to cry, and that Sprosty then told her, "Mom, I will tell them the truth, I will give them what they are looking for." (Mar. 1, 1990 Tr. at 58.) In either case, approximately twenty minutes after Valley made the promise to have the burglary charges dropped, Sprosty led him to a pickup truck adjacent to the mobile home and removed several pornographic photographs from the pocket of a leather jacket hidden in the truck. Sprosty then handed the photographs to Valley. (Mar. 1, 1990 Tr. at 30-32, 42.) Sprosty was transported to the Sheriff's Department, where he was again advised of his Miranda rights. After two hours of questioning, he signed a statement confessing to the crimes. At a subsequent hearing, the state trial court determined that James A. Fabian, the county prosecutor of Houston County, Minnesota, had agreed not to pursue possible burglary charges against Sprosty in Minnesota, and to allow Wisconsin authorities to communicate that information to Sprosty if it would aid them in their investigation of the present offenses. (Feb. 7, 1991 Tr. at 35-36, 38-39.)
Prior to trial, Sprosty moved to suppress his confession and other incriminating statements, as well as the photographs seized in connection with those statements. He argued that this evidence was obtained in violation of his right under Miranda and Edwards to have custodial interrogation cease as soon as he requested a lawyer. In a separate motion, Sprosty asserted that his confession was coerced by Valley's empty promise that the burglary charges in Minnesota would be dropped if he cooperated. The state trial court held evidentiary hearings on March 1, 1990 and February 7, 1991 to consider Sprosty's motions. At the close of the first hearing, the judge denied the motion based on Miranda and Edwards for the following reasons:
If the testimony was that Mr. Sprosty told one of the officers that he wanted to talk to an attorney, the rule is that you don't ask him any more questions, you just let him talk to his attorney and that is it, period. But that information has to be relayed either directly or indirectly. [. . .] There is a provision in the statute that when an officer prohibits a person from talking to an attorney after the person has requested to talk to an attorney, there is a penalty for that. I recognize that provision of the statute. But that isn't the case here. Mr. Sprosty will have to show that either these officers were made aware of the fact that he wanted to talk to an attorney and that he was denied that right and then continued to be questioned. There are inconsistencies as remembered by the officers on the scene and as remembered by the ladies on the scene. And even between the ladies and the officers, there is a difference in some respects. I can understand what happened. I can understand why Ms. Sprosty [Sprosty's mother] would be upset, she had been sick for two or three days and I can understand why Ms. Ingle might be upset, never having experienced that before. But as far as the officers violating the Edward's rule pertaining to questioning after being told that he wanted to talk to his attorney, I don't have any evidence to show that. (Mar. 1, 1990 Tr. at 87-89.)
At the close of the second evidentiary hearing, the judge refused to suppress the evidence obtained as a result of Valley's promise to have burglary charges against Sprosty dropped, finding that the promise did not taint this evidence because Valley had a basis for making the promise, and the promise was indeed fulfilled. (Feb. 7, 1991 Tr. at 35-39.) The judge also revisited the issue of Sprosty's alleged request for an attorney, stating that,
[t]here was enough conflict between your witnesses and the State's witnesses as to whether or not there was a request for an attorney at the time you told your mother to call your attorney, that it just seems to me the issue of whether that in fact actually took place was so unclear that I believe the officers' recitation. If I didn't say it before, I do now, I believe their recitation was beyond a reasonable doubt. (Feb. 7, 1991 Tr. at 38.)
Sprosty subsequently entered a no contest plea and was sentenced to five years in prison, reserving the right to challenge the suppression rulings on appeal. The Court of Appeals of Wisconsin ...