This is a “recommended for publication”, split court of appeals opinion where the State lost in a child sexual assault case. In other words the State will surely petition for review, and SCOW will take it. Applying State v. Davis, 2008 WI 71, 310 Wis. 2d 583, 751 N.W.2d 332, the majority held that the defendant’s polygraph test and the confession were two discrete events, but based on the facts of this case, the confession was involuntary. The dissent by Judge Hruz would hold the confession voluntary.
The charged Vice (unfortunate last name for a defendant) with sexually assaulting a 4 year old by allegedly sticking his finger into her anus and vagina and attempting to lick her “privates.” He denied the accusation and agreed to take a polygraph exam. Afterwards the police told him to wait in a small, windowless “interview” room for 10 to 15 until they got the results.
Two officers told Vice that he failed the polygraph test and this meant it was “very clear” that he was not telling the truth. Vice was surprised, distraught and ill at the news. He insisted that he was telling the truth. But then the police employed a common, and some would argue unlawful, tactic. They interrogated him using the Reid technique. This opinion makes no mention of “the Reid technique” but anyone familiar with it who reads pages 5-11 of the opinion will recognize that’s what they were doing. Vice confessed.
The court of appeals first considered whether the polygraph test and the interview were so closely associated that they were one event, which would mean the confession had to be suppressed under Davis. Opinion, ¶43. To decide this point the a court considers:
(1) whether the defendant was told the [examination] was over; (2) whether any time passed between the [examination] and the defendant’s statement; (3) whether the officer conducting the [examination] differed from the officer who took the statement; (4) whether the location where the [examination] was conducted differed from where the statement was given; and (5) whether the [examination] was referred to when obtaining a statement from the defendant. Opinion, ¶47 (citing Davis, ¶23.)
The majority held that that Vice’s polygraph test and interview were two discrete events because:
Vice signed a form stating that the polygraph examination was over and that any subsequent questions were not part of the polygraph examination; the examination and post-polygraph interview took place in different rooms; ten to fifteen minutes elapsed between the examination and interview; and the interview involved a second officer who did not participate in the polygraph examination. Opinion, ¶47
Thus, suppression of Vice’s confession was not warranted under the first prong of Davis.
The majority called the involuntariness of Vice’s confession “close” question, but held it involuntary under the totality of the circumstances test in Davis and State v. Hoppe, 2003 WI 43, ¶37, 261 Wis. 2d 294, 661 N.W.2d 407. It did so based on coercive interview strategies that overcame Vice’s ability to resist. In summary form, those included the officers:
(1) making numerous, repeated references to the polygraph results throughout the entire course of the post-polygraph interview; (2) repeatedly asserting that those results showed Vice—who claimed not to remember the assault—did remember it; (3) failing to correct Vice’s statement that he must have assaulted the victim because the test said he did; and (4) failing to inform Vice that the test results would be inadmissible in any criminal proceedings against him. Opinion, ¶72.
Hruz agreed that the polygraph test and the interview were discrete events. However, he would find the confession lawful because, while “subtle pressures” by police may be deemed coercive, that principle only apples where the defendant is mentally or physically compromised, which Vice was not. See State v. Agnello, 2004 WI App 2, ¶18, 269 Wis. 2d 260, 674 N.W.2d 594 (2003); State v. Jerrell C.J., 2005 WI 105, ¶36, 283 Wis. 2d 145, 699 N.W.2d 110.
According to Hruz, these interview techniques are coercive and unlawful:
(1) subjecting a defendant to a four-hour interrogation while he was incapacitated and sedated in an intensive-care unit; (2) interrogating a defendant, who was on medication, for over eighteen hours without food or sleep; (3) holding a gun to the head of a wounded confessant in order to extract confession; (4) repeated interrogation of a defendant in a closed environment, while limiting his food, sleep, or medicine; and (5) officers informing a defendant that their police chief was preparing to admit a “lynch mob” into the jail. Colorado v. Connelly, 479 U.S. 157, 163 & n.1 (1986) (citations omitted). Opinion, ¶84.
Appellate nerds will be interested in another feature of this case. This is the second time Vice’s case has been appealed. The first time around he had conceded in the circuit court that the test and interview were discrete events. The court of appeals held that he was judicially estopped from reversing his position on appeal. It remanded the case for additional fact finding about whether the confession was voluntary. On remand, Vice got a new lawyer who argued that the first lawyer had erred in conceding the point. The circuit court said it was bound by the law of the case, but it allowed Vice to make a record that the court of appeals could consider if it chose to address the issue on appeal. As you can see, the court of appeals did address the issue. The court of appeals rarely finds judicial estoppel. Query whether it has ever reversed such a finding before.