¶14. In this case it is not disputed that before he confessed to Detective Williams, Greer was told, both orally and in writing, that the polygraph test was over. It is also not disputed that before he confessed to Detective Williams, Greer was not only disconnected from the polygraph machine but was moved to a different room, which did not have any polygraph machines in it. As the trial court found, there was an hour between the end of the polygraph examination and the start of Greer’s interrogation by Detective Williams. And, Detective Williams was not the polygraph examiner. As the State points out, this, too, “clearly signal[ed] that the polygraph [was] over and what is to follow is no longer part of the polygraph examination.” Thus, from a purely spatial and temporal standpoint, it cannot be said here, in the words of Schlise, that “[t]he post-mechanical interview was so closely associated with the mechanical or electronic testing, both as to time and content, that it must be considered as one event,” Schlise, 86 Wis. 2d at 43, 271 N.W.2d at 627, unless the fact that Greer was told that he had failed the examination trumps the other elements. We conclude that it does not.
¶17. In our view, a truthful comment to a suspect, either volunteered by the officer or in response to the suspect’s question, does not override the other factors that we have used consistently to determine whether a defendant’s post-examination statements should be suppressed. Under the facts here, Greer’s post-examination interview was discrete from the polygraph test: he knew the examination was over, he was disconnected from the polygraph machine, he was escorted out of the examination room and put in another room, he acknowledged that he understood “that any questions that I may be asked after this point in time, and any answers I may give to those questions, are not part of the polygraph examination,” and an hour had passed between the end of the polygraph examination and the start of the interview. Accordingly, the trial court should not have suppressed Greer’s confession.
Neither the results of a polygraph, State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628 (1981), nor statements made during the examination, State v. Schlise, 86 Wis. 2d 26, 42-44, 271 N.W.2d 619 (1978), are admissible.
¶10. The touchstone of admissibility is whether the interviews eliciting the statements are “found to be totally discrete from the examination which precedes them.” Schlise, 86 Wis. 2d at 42, 271 N.W.2d at 626. Stated another way, statements that a defendant makes after he or she takes a polygraph examination will be suppressed if “[t]he post-mechanical interview was so closely associated with the mechanical or electronic testing, both as to time and content, that it must be considered as one event.” Id., 86 Wis. 2d at 43, 271 N.W.2d at 627.
As indicated above, the fact that a defendant is told s/he flunked the test doesn’t have trumping effect. The police told Greer his test was over; the court now says, in effect, that that’s enough to end his issue too. Couple of points. Shouldn’t the issue of whether the statement was “totally discrete” from the test be one of historical fact? In this instance, the trial court suppressed, meaning that its finding that test-interrogation inseparability should be given deference on appeal. The court of appeals pays mechanical lip service to the test for review, ¶9, but its succeeding analysis seems totally discrete. The court does say that application of law to given facts is subject to de novo review, ¶13 – why does that notion always appear to be overarching in state’s appeals? – but the court does not say whether the trial court’s determination of inseparability is one of fact or law. This omission, if nothing else, may allow the opinion to be read as establishing severability as a conclusion of law.
Second, the court, intimating waiver bar, refuses to allow Greer to raise a belated voluntariness argument. ¶5 n. 3 (supplemental briefing would be “inappropriate,” given Greer’s prior, “ample opportunity to raise the voluntariness issue”; an issue not briefed is waived). Whether or not a defensible approach, this refusal is bad policy from a purely judicial cost-benefit standpoint. This is a pretrial, state’s appeal. Greer will undoubtedly be able to challenge the statement on voluntariness grounds on remand, especially in the absence of an appellate resolution. Indeed, Greer wouldn’t necessarily be barred from renewing voluntariness on remand even if the court of appeals had ruled against him. State v. Wurtz, 141 Wis.2d 795, 797, 416 N.W.2d 623 (Ct. App. 1987) (admissibility of statements is discretionary trial court matter which law of the case doesn’t bar revisiting on remand).) So, the issue is going to get decided, it’s simply a matter of who you want to have first crack at it; it would seem most efficient under the circumstances to have the court of appeals resolve it, given that that’s who actually has the case. Nor is it irrelevant that the defendant is the respondent, having prevailed below: “The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court.” Dandridge v. Williams, 397 U.S. 471 (1970). Of course, that doesn’t mean that the appellate court has to let the prevailing party raise a belated argument. It’s just that there’s no good reason not to. Remember this result, too, next time the court sua sponte affirms on a theory it came up with on its own. And the precise voluntariness argument sought to be raised? Not clear, though the court of appeals does allude to a trial court finding that the police told Greer he’d get 120 years in prison, but if he confessed he’d only get 5 years probation. ¶6. Sounds like support for a compelling argument the statement was involuntary.