On Point: 5. Confessions

The 5th Amendment is an invincible shield against takings claims but not against self-incrimination and double jeopardy claims.  And, of course, the justices political leanings influence their positions. Click SCOWstats for the justice-by-justice analysis.

State v. Brian L. Halverson, 2019 WI App 66; petition for review granted 3/17/20; affirmed 1/29/21; case activity (including briefs)

Until now, Wisconsin held that a person who is interviewed by law enforcement while incarcerated is per se in custody and thus must receive a Miranda warning. State v. Armstrong, 223 Wis. 2d 331, 588 N.W. 2d 606 (1999). This published court of appeals’ decision holds that the SCOTUS effectively overturned Armstrong in Howes v. Fields, 565 U.S. 499 (2012). Going forward, courts must determine whether an inmate is in custody by analyzing the totality of the circumstances surrounding his interrogation.

State v. Ulanda M. Green, 2018AP1350-CR, petition for review granted 9/3/19; case activity (including briefs)

Issues:

1. Whether law enforcement’s “dialogue” with Green amounted to an “interrogation” that should have been preceded by a Miranda warning?

2. Whether Green invoked her right to remain silent when law enforcement asked her if she would like to make a statement and she responded: “No. I don’t know nothing.”

State v. Christopher J. Durski, 2018AP1750-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Durski was arrested at a motel, where he had decamped after a family dispute. In investigating the family dispute police learned Durski drank alcohol before leaving for the motel, so they tracked him down. Durski wasn’t in custody during the officers’ initial questioning of him at the motel, so his statements were admissible despite the lack of Miranda warnings. So was the state’s retrograde extrapolation evidence.

State v. Traci Busha, 2018AP1863, 8/20/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Ms. Busha’s car was stuck in a ditch on the outskirts of Superior. A responding police officer found her alone in the passenger seat. She had been drinking but said she hadn’t been driving; her boyfriend “Scott” had been. For various reasons the officer didn’t buy her story. After about 15 minutes, while a tow truck was en route, the officer told her to get out of the car and stand by his vehicle. At this point, he told her he didn’t believe her account and said it was time to tell the truth. She admitted to driving.

We posted yesterday about State v. John Finley, which addressed a challenge to the confession of an adult with intellectual limitations. Coincidentally, we learned today of two articles related to confessions that may interest our readers.

State v. John S. Finley, 2018AP258-CR, District 2, 6/12/19 (not recommended for publication); case activity (including briefs)

Here’s a succinct summary of this decision: “The Majority supports the government’s  ‘interview,’ which utilized lies, threats, and fabrication of evidence to wrestle a statement from a thirty-six-year-old man, who has the mind of a twelve year old and the social skills of a first grader.” (¶24 (Reilly, P.J., dissenting) (footnote omitted)).

State v. Peter J. Hanson, 2019 WI 63, 6/5/19, affirming an unpublished decision of the court of appeals; case activity (including briefs)

Hanson was called to testify at a John Doe proceeding looking into an unsolved homicide. He was eventually charged with the crime, and at his trial the jury heard  a portion of Hanson’s John Doe testimony. The supreme court held the admission of this evidence didn’t violate Hanson’s right to confrontation. The court also holds that Hanson’s John Doe testimony was admissible despite the lack of Miranda warnings because that warning isn’t required at a John Doe proceeding.

State v. Ulanda M. Green, 2018AP1350-CR, District 1, 5/29/19 (not recommended for publication), petition for review granted, 9/3/19; case activity (including briefs)

Green sought to suppress incriminating statements she made to police both before and after being given the Miranda warnings. The court of appeals holds that the pre-Miranda statement Green made was not the product of interrogation, so it’s admissible. As for the statements she made after the warnings, the court rejects her argument that she invoked her right to remain silent and so interrogation should have ceased.

Marquette County v. Christopher Patrick Bray, 2018AP665, 2/28/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs).

Bray was convicted of OWI. He argued that the circuit court should have suppressed statements he made to a sergeant during a traffic stop because he wasn’t Mirandized. The court of appeals held that Bray wasn’t in custody so no Miranda warning was necessary.