Armin Wand and his brother Jeremy were convicted of crimes relating to a fire at Wand’s residence that killed his three sons, seriously injured his wife and caused the death of the fetus she was carrying. Before he pled, Wand moved to suppress statements he made to officers on two consecutive days; the court suppressed the first day’s as involuntary but admitted the second day’s. He appeals on various grounds connected to the admission of those later statements.
The first interrogation occurred at the hospital where Wand was being treated. The circuit court concluded that the interrogating officers persuaded him to talk by promising him leniency they lacked the authority to grant, rendering his statements involuntary. (¶14). The officers eventually read Wand his Miranda rights and he invoked his right to silence. The agents terminated the conversation, making two comments:
(1) That [one of the officers] thought it was “kind of strange that you come in that night of the fire buddy buddy with the guy [Jeremy] that you know just murdered your family…. Well, just think about that.”
(2) That Armin Wand’s brother Jeremy told law enforcement that Armin Wand had kissed someone other than Armin Wand’s wife.
The next day, now in jail, Wand called both officers but did not get through. Two other officers, however, had him brought to an interview room and spoke with him. Wand informed these officers that he had called because he wanted to talk further; the officers read him his Miranda rights and interviewed him for the next several hours. (¶12). The circuit court determined that the second day’s questioning was not coercive and that Wand’s statements were sufficiently attenuated from the first day’s involuntary statements. (¶16).
Wand first argues that the officer’s two above-described comments on the first day constituted a failure to “scrupulously honor” his invocation of his right to silence (see Michigan v. Mosley, 423 U.S. 96, 103 (1975)), and that they brought about the second day’s statements. The court responds that Wand has not developed any argument that the comments were the “functional equivalent of express questioning” or explained how they might have “improperly influenced” his decision to talk on the second day. (¶¶20-21).
The court of appeals similarly rejects the argument that the circuit court erred in deciding that the first day’s promises of leniency did not influence Wand’s decision to talk on the second day, noting that Wand does not challenge the factual findings underpinning the lower court’s decision and that there is no “blanket rule” excluding statements made subsequent to earlier involuntary ones. (¶¶23-24). Wand also argues that the second day’s statements were independently coerced; the court finds this argument forfeited in several respects. (¶¶26-29).
Wand finally alleges that a psychologist’s report submitted with his postconviction motion constitutes new evidence that his statements on the second day were involuntary, and thus supports plea withdrawal. The court disagrees:
Following [State v. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883], we conclude that the new psychologist’s report is “‘nothing more than the newly discovered importance of existing evidence,’ … not newly discovered evidence for purposes of plea withdrawal.” See id., ¶25 (quoted source omitted). In Fosnow, we rejected a new psychiatric diagnosis, relevant to whether the defendant was criminally responsible for his crimes, as newly discovered evidence entitling the defendant to withdraw his pleas. Id., ¶16. We ruled that evidence of the defendant’s diagnosis “existed and was known to him and his counsel at the time he entered his pleas,” and that the postconviction expert opinion based on that evidence was “‘the newly discovered importance of existing evidence,’ rather than newly discovered evidence.” Id. (quoted source omitted).
Similarly here, the postconviction psychologist’s report provides new opinions on evidence comprising Wand’s psychological evaluation conducted in support of the pre-plea suppression motion and the video recordings and transcript of his September 9 interview. This evidence was known to Wand and his counsel at the time he entered his pleas. Accordingly, we conclude that the new psychologist’s opinions do not constitute newly discovered evidence that would entitle Wand to withdraw his pleas to correct a manifest injustice.