COURT OF APPEALS

DECISION

DATED AND FILED

July 5, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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. 
No. 2022AP678-CR

3

¶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.
No. 2022AP678-CR

4

¶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 
No. 2022AP678-CR

5

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.”).
No. 2022AP678-CR

6

“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.
No. 2022AP678-CR

7

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). 
No. 2022AP678-CR

8

¶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.
No. 2022AP678-CR

9

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 
No. 2022AP678-CR

10

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).
No. 2022AP678-CR

11

¶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. 
No. 2022AP678-CR

12

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.