State v. Richard W. Seehaver

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.
August 8, 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. 2021AP1581-CR Cir. Ct. No. 2019CF15

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICHARD W. SEEHAVER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dunn County:
ROD W. SMELTZER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Richard Seehaver appeals from a judgment of
conviction, which was entered following his no-contest plea to second-degree
No. 2021AP1581-CR

intentional homicide by use of a dangerous weapon, as a repeater. Seehaver
contends that the circuit court erred when it denied his motion to suppress
statements made to investigators following his arrest. Specifically, Seehaver
argues that the court erred because he was not given Miranda warnings until
partway through a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436
(1966). Additionally, he asserts that he did not knowingly and intelligently waive
his rights once the Miranda warnings were provided. We affirm Seehaver’s
judgment of conviction.

BACKGROUND

¶2 Seehaver was charged with first-degree intentional homicide by use
of a dangerous weapon, as an act of domestic abuse and as a repeater, for
murdering his roommate, John Likeness. According to the criminal complaint,
officers responded to a reported altercation at Seehaver and Likeness’s residence.
Upon arriving at the residence, an officer walked up to the front door, looked
inside a window, and observed Likeness sitting in a “[L]azy [B]oy chair” with
Seehaver’s “arms wrapped around Likeness’[s] neck.”

¶3 After unsuccessfully trying to make contact with Seehaver and
Likeness at the front door, the officer went back to the window and peered inside.
At this point, “he observed an item sticking out of Likeness’[s] chest,” which was
later determined to be an arrow. Seehaver eventually exited the house and was
detained by law enforcement. An autopsy was performed on Likeness, which
showed that he sustained an arrow wound to the chest and three “sharp force
injuries to the neck.”

¶4 After a complaint was filed, the circuit court ordered a competency
evaluation of Seehaver. Thereafter, the court found Seehaver incompetent to

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proceed but determined that he would likely become competent within the
statutory time period if given the appropriate medication and treatment. Roughly
three months later, a doctor informed the court that Seehaver no longer lacked the
“substantial mental capacity to understand the proceedings and assist in his own
defense.” Following the doctor’s recommendation, the court found Seehaver
competent to proceed.

¶5 Subsequently, Seehaver filed a motion to suppress statements he
made to investigators Kelly Pollock and Michael Sampson after being taken into
custody. He argued that the investigators did not provide him Miranda warnings
“until partway through the interrogation” and that his statements “were not
voluntary, knowing and/or intelligent.”

¶6 At a suppression hearing, the circuit court admitted an audiovisual
recording and a transcript of the investigators’ interview with Seehaver into
evidence. The interview, which commenced just before midnight the same day
Seehaver was taken into custody and was in the “recorded interview room” at the
Dunn County Jail, began as follows1:

SAMPSON: Hey, Richard. How are you? Been a long
time since I last saw you. Want something to drink? Your
choice.

SEEHAVER: Yeah.

POLLOCK: Good choice.

SAMPSON: Good choice. I was really holding out for this
one.

1
Because the parties agree that the admitted transcript included multiple errors, we rely
largely on the actual audiovisual recording in this opinion.

3
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POLLOCK: I was waiting for you to be like I got the
Dr. Pepper, I got the Dr. Pepper.

SAMPSON: I told her on the way over here I was really
hoping to get the Dr. Pepper.

SEEHAVER: Where have I seen you before?

SAMPSON: Um, I talked to you … over at the house
there … on Veteran’s Day. Remember that? Remember
you guys had a girl that came over and stayed with [you]?
She was from like … Hayward.

SEEHAVER: Yeah.

SAMPSON: Like drinking. You and I had a really—really
good conversation that day. Remember that?

SEEHAVER: I do, yeah.

SAMPSON: Yeah. So yeah. It’s been a little bit. I
transitioned obviously in the meantime I moved out
of … patrol and now I’m an investigator. So.

POLLOCK: And my name is Kelly, I’m another
investigator with the police department. And what do you
like to be called? What do you like to go by?

SEEHAVER: Rich is fine.

POLLOCK: Rich is fine? Okay. Sounds good, Rich. Um,
so is there anything else we can get you right now or are
you doing okay?

SEEHAVER: I’m—there’s nothing you can do for me.

POLLOCK: Okay. Um, can you tell me a little bit about
yourself?

SEEHAVER: Um. Mhm. Oh. I care about people. I’m
kind. And I’m—I care for a good friend.

POLLOCK: Can you tell me how long, Rich, how long
have you lived here?

SEEHAVER: Wisconsin?

POLLOCK: Yeah. In this city particularly.

SEEHAVER: Oh. At John and I’s house?

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No. 2021AP1581-CR

POLLOCK: Mhmm.

SEEHAVER: Couple months.

POLLOCK: Couple months. Okay.

SEEHAVER: We moved—We lived in Cedar Falls before
there.

POLLOCK: Okay. Have you lived anywhere between
Cedar Falls and here?

SEEHAVER: If this fucking bullshit don’t get over
tonight, I’m gonna—I’m gonna fucking kill myself. I mean
it. I’m fucking sick of it. People have been fucking with
me for a long—years. Years and years this shit has been
going on. Fucking with me. Picking on my fucking friends
and I’m done. I’m done. Picking on people that are—

POLLOCK: So.

SEEHAVER: I’m—I’m no frickin angel.

POLLOCK: Okay. So, Rich, you lived in Menomonie
here for a couple months now?

SEEHAVER: Yep.

POLLOCK: Okay. Um, who lives with you? Or do you
know—do you know your address here in town?

SEEHAVER: You know, right now if I wanted to deal
with the—if I wanted to do what the devils been telling me
to do, I would shut my fucking mouth and I’d say lawyer
up. I—and I—ask to get out of here and go back to my
cell. I don’t think that’s the right thing to do though.

POLLOCK: Okay.

SAMPSON: Rich, you remember having a conversation
with me back in November?

SEEHAVER: I don’t remember what it was about exactly
but—

SAMPSON: Okay.

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¶7 At that point in the interview, Seehaver began a roughly
seven-minute, uninterrupted monologue about the devil, aliens, and how someone
was talking through the radio and television for Seehaver “to come join them.” He
also stated that he had been diagnosed with schizophrenia. During this discussion,
Seehaver also mentioned a “large group” who was going to kill him for not
assisting “in child slavery, rape, [and] murder.”

¶8 Investigator Sampson then asked Seehaver for the name of the group
Seehaver mentioned, to which Seehaver responded, “probably [the] Aryan
Brotherhood.” Seehaver accused both investigators of being part of the group, but
he then quickly changed the subject and asked Sampson what they talked about
during their previous conversation. Sampson responded that they talked about
how they were both veterans.

¶9 Seehaver then commenced another largely uninterrupted monologue
lasting roughly twelve minutes. This time, he also discussed how the group
“picked on [his] friend for a long time,” who was later revealed to be Likeness.
Seehaver stated that his “best friend had been tortured for so long. He’s better off
dead.” During the same monologue, Seehaver said that he “didn’t kill John out of,
uh—he was fucking miserable and did some of the most terriblest [sic], most
heinous fucking things.”

¶10 Roughly two minutes after making this latter statement, the
following occurred:

POLLOCK: Do you think, Rich, we could talk a little bit
more about what John’s role was with these people and
what they made him do and what they did to you? Would
that be okay with you?

SEEHAVER: Yeah.

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No. 2021AP1581-CR

POLLOCK: Okay. Can I read something to you quick?

SEEHAVER: Sure.

POLLOCK: Okay. [Read Miranda warnings.] Do you
understand your rights?

SEEHAVER: Oh, yes, I do.

POLLOCK: Are you willing to talk to me a little bit more
about what’s going on?

SEEHAVER: Hmm. No. I—I want you fuckers to kill
me. Go ahead. Kill me.

POLLOCK: We don’t want to kill you. We just want to
talk about you, about what happened.

SEEHAVER: Don’t bull fucking shit me. I don’t believe
either fucking one of you…. You’re probably fucking both
of them too. Fucking—you give me the gun and I’ll
fucking shoot myself. Leave me the fuck alone…. I’m not
putting up with you motherfuckers anymore. I’m good.
You’ve done diggity fucking—I’m not—this is not going to
be a partnership. I wouldn’t partnership [sic] with such
fucking bullshit.

POLLOCK: Well, I would like to hear a little bit more,
Rich, about what John’s role was with the people and what
they did for you and to you …, but I’ve got to know if
you’re willing to answer questions and talk to us and make
a statement right now and it’s pretty much just a yes or no.

Seehaver then went on another, uninterrupted monologue about the group and his
daughter. He also stated that “[e]verything I’ve learned has told me if you want to
get out [of] something, shut your fucking mouth. I know this.” Pollock again
asked Seehaver if he would be willing to talk to the investigators. Although
Seehaver did not give a “yes” or “no” answer, he continued talking with the
investigators.

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No. 2021AP1581-CR

¶11 Ultimately, Seehaver admitted to murdering Likeness with the arrow
and to cutting his throat. In all, the interview lasted for over two hours and ended
at around 2:00 a.m. on December 31, 2018.

¶12 In an oral ruling, the circuit court denied Seehaver’s motion to
suppress. Subsequently, Seehaver pled no contest to an amended charge of
second-degree intentional homicide by use of a dangerous weapon, as a repeater.
He now appeals.

DISCUSSION

¶13 “When reviewing a circuit court’s denial of a motion to suppress
evidence, we apply a two-step standard. We uphold the circuit court’s findings of
fact unless they are clearly erroneous. We then review de novo the application of
the facts to the constitutional principles.” State v. Lonkoski, 2013 WI 30, ¶21,
346 Wis. 2d 523, 828 N.W.2d 552. “Whether a waiver of the rights to silence and
to counsel was knowingly, voluntarily and intelligently made is a question of law
for our independent review.” State v. Rejholec, 2021 WI App 45, ¶16, 398
Wis. 2d 729, 963 N.W.2d 121 (citation omitted).

I. Miranda warnings

¶14 Miranda warnings must be provided “whenever the State
interrogates a suspect in police custody.” State v. Harris, 2017 WI 31, ¶11, 374
Wis. 2d 271, 892 N.W.2d 663. Miranda warnings must warn a suspect that “he
[or she] has a right to remain silent, that any statement he [or she] does make may
be used as evidence against him [or her], and that he [or she] has a right to the
presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444.
The State bears the burden of proving by a preponderance of the evidence that a

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No. 2021AP1581-CR

defendant’s statements to law enforcement were constitutionally provided. State
v. Jiles, 2003 WI 66, ¶26, 262 Wis. 2d 457, 663 N.W.2d 798.

¶15 The State concedes that Seehaver was in custody for purposes of a
Miranda analysis. The parties disagree, however, whether Seehaver was subject
to an unlawful interrogation before the investigators provided him Miranda
warnings.2

¶16 Seehaver’s interrogation argument relies almost exclusively on a
comparison between his situation and the one discussed in Missouri v. Seibert,
542 U.S. 600 (2004).3 In Seibert, police expressly “questioned” a suspect for “30

2
The State argues that Seehaver conceded the “interrogation” issue by not responding to
the State’s argument in the circuit court or on appeal. We disagree. Seehaver clearly argued in
circuit court—and does so again here—that the investigators were required to provide him with
Miranda warnings at the start of the interview. See Miranda v. Arizona, 384 U.S. 436 (1966).
He therefore adequately addresses the interrogation issue, albeit unclearly, as explained next.
3
Seemingly in support of his approach to the constitutional issue raised, Seehaver states:

The crux of the disagreement between the State and Seehaver is
that the State maintains that the police’s interrogation of
Seehaver can be divided into two discrete parts, a pre-Miranda
non-interrogative period of preliminary questioning, and a
post-Miranda interrogation. The State, however, cites no
authority that an interrogation can be parsed in this manner.
Seehaver, on the other hand, maintains that his interrogation
must be treated as a single integrated whole, that it cannot be
parsed into separate sections with each isolated section being
given its own separate Miranda analysis.

(Footnote omitted.) Seehaver misses the mark regarding the proper constitutional analysis.
Contrary to Seehaver’s argument, non-interrogative questioning is not transformed into an
interrogation simply because it is followed by interrogative questioning. Consistent with
Miranda and subsequent case law, we must first determine whether an interrogation took place.
To do so, we consider whether the investigators’ questions and actions prior to the Miranda
warnings constituted interrogation.

(continued)

9
No. 2021AP1581-CR

to 40 minutes” without giving her Miranda warnings. Seibert, 542 U.S. at
604-05. After police obtained a confession from the suspect, she was given a
“20-minute coffee and cigarette break.” Id. at 605. Police then immediately
questioned the suspect again, this time after providing her Miranda warnings.
Seibert, 542 U.S. at 605. During the second questioning, the police “confronted
[the suspect] with her prewarning statements” and obtained a second confession.
Id. At a suppression hearing, the officer who questioned the suspect testified that
“he made a ‘conscious decision’ to withhold Miranda warnings, thus resorting to
an interrogation technique he had been taught: question first, then give the
warnings, then repeat the question ‘until I get the answer that she’s already
provided once.’” Seibert, 542 U.S. at 605-06.

¶17 The Court referred to this technique as “question-first” and it stated
that the technique’s “object … is to render Miranda warnings ineffective by
waiting for a particularly opportune time to give them, after the suspect has
already confessed.” Seibert, 542 U.S. at 611. The Court reasoned that “it is likely
that if the interrogators employ the technique of withholding [Miranda] warnings
until after interrogation succeeds in eliciting a confession, the warnings will be
ineffective in preparing the suspect for successive interrogation, close in time and
similar in content.” Seibert, 542 U.S. at 613. Reading a suspect Miranda
warnings midway through an interrogation could, according to the Court, “lead to
an entirely reasonable inference that what he [or she] has just said will be used,

Notably, Seehaver does not argue that the investigators engaged in “express questioning”
or its “functional equivalent.” See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Because
Seehaver relies almost exclusively on Missouri v. Seibert, 542 U.S. 600 (2004), we will not
develop an argument on his behalf regarding whether express questioning or its functional
equivalent took place. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992)
(“We cannot serve as both advocate and judge.”).

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No. 2021AP1581-CR

with subsequent silence being of no avail.” Seibert, 542 U.S. at 613. The Court
warned that “[b]ecause the intent of the officer will rarely be as candidly admitted
as it was here …, the focus is on facts apart from intent that show the
question-first tactic at work.” Id. at 616 n.6. Ultimately, the Seibert Court
affirmed a lower court’s suppression of the suspect’s statements. Id. at 617.

¶18 In reaching its conclusion in Seibert, the Court distinguished its
decision from Oregon v. Elstad, 470 U.S. 298 (1985). Seibert, 542 U.S. at 614.
In Elstad, police arrested an eighteen-year-old suspect at his house on a charge
related to the burglary of a family home. Elstad, 470 U.S. at 300. During the
arrest, one officer spoke with the suspect’s mother in the kitchen to explain that
the officers had a warrant for the suspect’s arrest. Id. at 300-01. A second officer
remained with the suspect in the living room and he asked the suspect “if he was
aware why [the officers] were there to talk with him.” Id. at 301. The second
officer then asked the suspect if he knew the name of the burglarized family, to
which the suspect said “yes.” Id. The second officer informed the suspect that he
felt the suspect was involved in the burglary, and the suspect stated, “Yes, I was
there.” Id. The suspect was subsequently transported to a police station, where
the officers read him his Miranda rights—which he waived—interrogated him,
and obtained a confession. Elstad, 470 U.S. at 301. The Court ultimately
concluded that Miranda did not require suppression of the suspect’s statements.
Elstad, 470 U.S. at 317-18.

¶19 The Seibert Court characterized the Elstad decision “as treating the
living room conversation as a good-faith Miranda mistake, not only open to
correction by careful warnings before systematic questioning in that particular
case, but posing no threat to warn-first practice generally.” Seibert, 542 U.S. at
615. The Court went on to explain that

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No. 2021AP1581-CR

[t]he contrast between Elstad and this case reveals a series
of relevant facts that bear on whether Miranda warnings
delivered midstream could be effective enough to
accomplish their object: the completeness and detail of the
questions and answers in the first round of interrogation,
the overlapping content of the two statements, the timing
and setting of the first and the second, the continuity of
police personnel, and the degree to which the interrogator’s
questions treated the second round as continuous with the
first.

Seibert, 542 U.S. at 615. Unlike Elstad, the questioning of the suspect in Seibert
“was systematic, exhaustive, and managed with psychological skill.” Seibert, 542
U.S. at 616. Notably, “[t]he warned phase of questioning proceeded after a pause
of only 15 to 20 minutes, in the same place as the unwarned segment,” and the
officers “did not advise that [the suspect’s] prior statement could not be used.” Id.
The Court concluded that “a reasonable person in the suspect’s shoes could not
have understood [the Miranda warnings] to convey a message that [he or] she
retained a choice about continuing to talk.” Seibert, 542 U.S. at 617.

¶20 The facts in Seibert—namely, the use of the question-first tactic—
are not present here. The questions posed to Seehaver prior to the Miranda
warnings included: whether Seehaver would like something to drink; what name
he would like to be referred to as; a request to tell the officers “a little bit about”
himself; how long he lived in Menomonie; what his address was; and whether
Seehaver recalled a previous conversation with Sampson. While Seehaver
responded to these questions, the investigators listened to him without interruption
for minutes on end. At one point, Seehaver talked for nearly twelve minutes
without the investigators interrupting, other than to once say, “Wow.” Thus,
Seehaver’s interview was more in line with the questioning in Elstad, where there

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No. 2021AP1581-CR

was no evidence that the interview “was systematic, exhaustive, and managed with
psychological skill.”4 Seibert, 542 U.S. at 616.

¶21 While the investigators in this case did refer back to Seehaver’s
pre-Miranda statements about the Aryan Brotherhood and aliens (which, at least
to some degree, related to Likeness) during their post-Miranda questioning, and
while the interview did continue in one “segment” with the same investigators like
the interview in Seibert, the record is devoid of facts showing that the
investigators used an unlawful technique. In other words, the investigators did not
use the question-first tactic in order to obtain a confession from Seehaver before
reading him Miranda warnings in order to later use the confession against him to
obtain a second confession post-Miranda warnings. Notably, the investigators did
not reference Seehaver’s inculpatory statement—“I didn’t kill John out of—he
was fucking miserable”—during the post-Miranda questioning. Accordingly, we
find no violation of Seehaver’s constitutional rights based upon the investigators’
pre-Miranda questions.

II. Miranda waiver

¶22 Next, Seehaver asserts that he did not knowingly and intelligently
waive his Miranda rights once the warnings were provided. “For statements made
during a custodial interrogation to be admitted, the State has the burden to prove

4
Seehaver also argues that law enforcement had “no reason” to evaluate whether he was
“under the influence of a substance before they start[ed] their ‘official’ interrogation” because
“[i]ntoxication has never stopped the police from interrogating anyone.” Seehaver does not
explain this argument further or support it with authority. See Pettit, 171 Wis. 2d at 646. To the
contrary, case law suggests that a suspect’s intoxication can affect the admissibility of his or her
statements where there is proof “that the confessor was irrational, unable to understand the
questions or his [or her] responses, otherwise incapable of giving a voluntary response, or
reluctant to answer the questions posed by authorities.” See State v. Clappes, 136 Wis. 2d 222,
241-42, 401 N.W.2d 759 (1987).

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No. 2021AP1581-CR

by a preponderance of the evidence that the defendant was adequately informed of
his or her Miranda rights and waived them.” Rejholec, 398 Wis. 2d 729, ¶19; see
also Miranda, 384 U.S. at 444. “In order to be valid, a Miranda waiver must be
knowing, voluntary and intelligent.” Rejholec, 398 Wis. 2d 729, ¶19 (citation
omitted). Aside from his above arguments, Seehaver does not contend that the
Miranda warnings were deficiently provided (in form) or that his waiver was
involuntary. We will therefore focus our analysis on whether he knowingly and
intelligently waived his rights.

¶23 A Miranda “waiver must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision
to abandon it.” Rejholec, 398 Wis. 2d 729, ¶29 (citation omitted). “[A]wareness
involves simply being cognizant at all times of ‘the State’s intention to use [one’s]
statements to secure a conviction’ and of the fact that one can ‘stand mute and
request a lawyer.’” State v. Lee, 175 Wis. 2d 348, 365, 499 N.W.2d 250 (Ct. App.
1993) (second alteration in original; citation omitted). This analysis is an
objective test, meaning “that the validity of any Miranda waiver must be
determined by the court’s inspection of the particular circumstances involved,
including the education, experience and conduct of the accused as well as the
credibility of the police officers’ testimony.” Lee, 175 Wis. 2d at 364. “[A]
suspect’s mental condition is a ‘significant factor’ in this analysis.” State v.
Abbott, 2020 WI App 25, ¶31, 392 Wis. 2d 232, 944 N.W.2d 8 (citation omitted).

In the absence of countervailing evidence, once the [S]tate
has established a prima facie case of waiver of Miranda
rights and voluntariness of an in-custody statement, the
statement should be admitted into evidence.

….

“[T]he general rule is that a prima facie case will be
established ‘when the [S]tate has established that [the]

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No. 2021AP1581-CR

defendant has been told or has read all the rights and
admonitions required in Miranda, and the defendant
indicates he [or she] understands them and is willing to
make a statement.’”

Lee, 175 Wis. 2d at 359-60 (citation omitted).

¶24 We agree with the State that it has established a prima facie case for
a valid Miranda waiver. Following preliminary questions, Pollock paused the
interview, read Seehaver undisputedly valid Miranda warnings, and Seehaver
responded that he understood the warnings, stating, “Oh, yes, I do.” Pollock then
asked Seehaver if he was willing to continue with the questioning. Despite
Seehaver at first stating “[n]o” and stating that he wanted the investigators to
“kill” him, he continued to converse, without provocation, with the investigators.
Seehaver therefore implicitly waived his Miranda rights. See Abbott, 392 Wis. 2d
232, ¶31.

¶25 Despite the State’s prima facie evidence of a valid waiver, Seehaver
contends that his waiver was not knowingly and intelligently made because “there
can be no question” that he was “floridly delusional when he was interrogated.”
Seehaver also notes that he was later found incompetent to stand trial, and only
after medication and treatment was he later restored to competency.

¶26 First, we are unpersuaded by Seehaver’s reliance on the circuit
court’s later finding of his incompetence. When assessing a defendant’s
competency to stand trial, the “court’s determination is concerned with the
defendant’s ‘present mental capacity to understand and assist at the time of the
proceedings.’” State v. Smith, 2016 WI 23, ¶37, 367 Wis. 2d 483, 878 N.W.2d
135 (citation omitted). Conversely, a Miranda waiver analysis considers whether,
at the time the warnings were read, the suspect was aware of the rights provided in

15
No. 2021AP1581-CR

the Miranda warnings—that is, whether the suspect was aware that the State could
use his or her statements to obtain a conviction and that he or she could remain
silent and request a lawyer. See Lee, 175 Wis. 2d at 360.

¶27 Here, the circuit court found Seehaver to be incompetent on
March 28, 2019—nearly three months after the interrogation took place.
Therefore, the fact that he was found incompetent to stand trial—months after the
interrogation—indicates nothing about his competency on the date of his
interrogation, and does not rise to the level of “countervailing evidence” that is
required to rebut the State’s prima facie showing of a valid Miranda waiver.
See Lee, 175 Wis. 2d at 359-61. Additionally, as the State points out, Seehaver
did not seek to enter a plea of not guilty by reason of mental disease or defect—
which would require Seehaver to have been mentally impaired at the time of the
offense, which was the same day as the interrogation—and we therefore do not
have before us an evaluation of his mental capacity on the day of the interrogation.

¶28 Second, a defendant’s mental condition, while a significant factor in
our analysis, is but one factor. Prior to Pollock even reading Seehaver his
Miranda warnings, Seehaver stated that “if I wanted to do what the devil has been
telling me to do, I would shut my fucking mouth and … lawyer up. I—and I—ask
to get out of here and go back to my cell. I don’t think that’s the right thing to do
though.” Later, during the interrogation, Seehaver again brought up the fact that
he could have “shut [his] mouth and lawyered up.” While some of Seehaver’s
statements could be characterized as strange, he also made statements indicating
his lucidity and his understanding of his right to have an attorney represent him
and that he did not need to speak with the investigators.

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¶29 Therefore, despite Seehaver’s reference to topics such as the Aryan
Brotherhood and aliens, his statements following the Miranda warnings
demonstrate that he was aware that the State could use his statements against him
at trial and that he could stay quiet and go back to his jail cell and request a
lawyer. See Lee, 175 Wis. 2d at 360. These understandings are all that is required
for a valid Miranda waiver.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

17