This decision points up a problem in Wisconsin case law: How does an appellate court analyze “harmless error” in a situation where the trial court denies a motion to suppress a defendant’s confession, which then causes him to plead guilty?
Police interrogated Dawson for 30-45 minutes in the back of a squad car about his friend’s death. Dawson insisted it was suicide until he got to the station. There he repeated the suicide story, but after learning his friend had died, admitted that he had accidentally shot his friend. On appeal, Dawson explained how suppression of the squad car statements would have significantly undermined the State’s ability to prove utter disregard for human life, one of the elements of 1st-degree reckless homicide, the crime to which he had pled guilty. The court of appeals didn’t buy it. It dodged the merits of the suppression issue and affirmed based on harmless error.
¶11 . . . “In a guilty plea situation following the denial of a motion to suppress, the test for harmless error on appeal is whether there is a reasonable possibility that the erroneous admission of the disputed evidence contributed to the conviction.” State v. Semrau, 2000 WI App 54, ¶22, 233 Wis. 2d 508, 608 N.W.2d 376. When determining whether an alleged error is harmless, we may consider, “among other factors … the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence,” and “whether the improperly admitted evidence duplicates untainted evidence.” See State v. Rockette, 2005 WI App 205, ¶26, 287 Wis. 2d 257, 704 N.W.2d 382.
¶12 . . . Dawson’s argument that the squad car statement was more indicative of the “utter disregard for human life” element of first-degree reckless homicide, see Wis. Stat. § 940.02(1), than the statement at the police station because the police station statement was followed by an admission is unpersuasive. The trial court would have had the same information, that Dawson initially lied to police about how his friend got shot, whether or not the squad car statement was suppressed. Furthermore, contrary to what Dawson argues, the fact that Dawson initially lied to police was hardly the only evidence of Dawson’s “utter disregard” for Cunning’s life. See id. Dawson pointed a loaded, semi-automatic gun at his friend. He later not only lied about doing so, but also—even after finding out that his friend was dead—lied to police about other important details, including the location of the gun. The trial court had ample evidence with which to find Dawson guilty of first-degree reckless homicide. The trial court’s decision to suppress the squad car statement was harmless, and Dawson’s conviction will stand.
Note the court of appeals’ focus on whether the trial court would have had enough evidence to convict had the squad car statements been suppressed. Dawson and the State framed the issue as whether he would have pled guilty had the squad car statements been suppressed. It’s interesting that the court cites both Semrau and Rockette for the test it applied. The Semrau test asks whether the defendant would have pled guilty. See Semrau, ¶22. Rockette expressly refused to apply the Semrau test for harmless error, relying instead on a SCOW harmless error test designed for trials, not pleas. See Rockette, ¶9 (applying State v. Hale, 2005 WI 7, 277 Wis. 2d 593, 691 N.W.2d 637). Prior posts here and here explain the problem in more detail. Sounds like there’s still some sorting out of the harmless error test to be done.