On Point: 5. Confessions

State v. Brian I. Harris, 2016 WI App 2, petition for review granted 4/6/16, affirmed 2017 WI 31; case activity (including briefs)

Incriminating statements Harris made while he was in custody were admissible despite the lack of Miranda warnings because the statements were either sufficiently attenuated from the taint of police questioning or were not made in response to police interrogation.

Review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point from the PFR)

1. Does the inevitable discovery doctrine require the State to show that information gained through police misconduct did not prompt or influence the purportedly lawful investigation?
2. Does the inevitable discovery doctrine require the State to show that it was actively pursuing an alternative line of investigation prior to the illegal conduct?
3. Does the Wisconsin Constitution bar use of the inevitable discovery doctrine to allow admission of evidence obtained through an intentional violation of constitutional rights?

State ex rel. Rockie L. Douglas v. Brian Hayes, 2015 WI App 87; case activity (including briefs)

Douglas’s probation was improperly revoked based on his refusal to answer his probation agent’s inquiry about Douglas’s suspected involvement in various criminal activities while on probation because he was not sufficiently informed, prior to his refusal, that he had both use and derivative use immunity related to any information he would have provided the agent.

State v. Eriberto Valadez, 2014AP2855-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)

Under State v. Goetz, 2001 WI App 294, 249 Wis. 2d 380, 638 N.W.2d 386, Valadez wasn’t in custody for Miranda purposes during the execution of a search warrant of his home, so the police questioning of him during that time didn’t have to be preceded by Miranda warnings.

State v. David D. Hartl, Jr., 2014AP2921-CR, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

In this OWI case, trial counsel moved to exclude reference to the 911 call about a possible drunk driver, which is what led to police to look for Hartl’s car and ultimately stop him. The state stipulated to excluding this evidence. But on cross-examination of the officer, trial counsel asked questions that led to the officer referring to the call. (¶¶4-5). Hartl argues his lawyer was ineffective for doing this. (¶¶12-14). While it would be “difficult to conclude” trial counsel wasn’t deficient (¶16), it is easy to conclude there was no prejudice.

State v. Jesse J. Delebreau, 2015 WI 55, 6/16/15, affirming a published court of appeals decision; majority opinion by Prosser, concurrence by Roggensack, dissent by Abrahamson; case activity (including briefs)

Last time SCOW addressed a defendant’s waiver of the right to counsel after being charged with a crime, the result was 5 separate opinions. Discerning the rule of State v. Forbush required clairvoyance. Here, SCOW holds definitively that a defendant’s waiver of his right to counsel in an interrogation before he is charged (under the 5th Amendment) is sufficient to waive his  right to counsel after he is charged (under the 6th Amendment) even though he has appeared in court with a public defender. Despite being represented by an attorney, the defendant must affirmatively invoke his right to counsel. The result is the same under Article 1 §7 of the Wisconsin Constitution.

State v. Raheem Moore, 2015 WI 54, 6/16/15, affirming a published decision of the court of appeals; majority opinion by Justice Prosser; case activity (including briefs)

The supreme court affirms the court of appeals’ conclusion that 15-year-old Raheem Moore’s confession was voluntary, but it rejects the court of appeals’ reading of § 938.31, which requires juvenile confessions to be recorded unless the juvenile “refused to respond or cooperate” with the interrogation if it was being recorded, § 938.31(3)(b) and (c)1.

State v. Mastella L. Jackson, 2015 WI App 49, petition for review granted, 10/8/15, affirmed, 2016 WI 56; click here for briefs

This decision is SCOW bait. Police in Outagamie County engaged in what the court of appeals called “reprehensible” actions while interrogating the defendant. “Outraged” the circuit court suppressed the defendant’s statements to police and the physical evidence obtained during the search of her home. The court of appeals reversed the suppression of physical evidence on the theory that the untainted evidence described in the officers’ search warrant established probable cause and that the physical evidence was admissible via the inevitable discovery doctrine.

State v. Johnny Jerome Jones, 2014AP342-CR, 3/24/14, District 1 (not recommended for publication); click here for docket and briefs

Jones turned himself in for a hit-and-run accident that resulted in death.  During the interrogation, and after being Mirandized, he asked the detective: “So ya’ll can get a public pretender right now?” The detective laughed and replied: “You said it right, pretender . . . . they’re called public defenders . . . Um, we obviously due to the time right now, we can’t, um . . . .” Jones moved to suppress his subsequent statement and lost at the circuit court and on appeal.

Practitioners take note. This opinion holds the seeds of controversy.  SCOW’s ruling–that forcing a defendant to bare his teeth to the jury does not violate the 5th Amendment–is not so surprising.  But Chief Justice Abrahamson’s concurrence, which announces the elimination of “opinion conferences” and new restrictions on the preparation of concurring and dissenting opinions seems alarming.