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State v. Elijah Arlanders Brock, No. 2009AP002120-CR, District I, 7/27/10

court of appeals decision (3-judge, not recommended for publication); for Brock: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Statement – Coercion

Threatened action against defendant’s girlfriend didn’t support suppression of his resulting statement:

¶11 Brock argues that Lynumn v. Illinois, 372 U.S. 528 (1963), requires suppression of his statement. Lynumn held that threats that a mother’s children would be taken away from her unless she “cooperated” “must be deemed not voluntary, but coerced.” Id., 372 U.S. at 534. Lynumn is inapposite because in that case the defendant was threatened with the loss of her children if she did not confess. Id., 372 U.S at 530–534, 544. Here, however, Panasiuk told Brock that if his girlfriend was charged, and if she stayed in jail, there was a possibility that social services could take her children away. Under established law, absent a showing that such a scenario was impossible or feigned, the explanation of what could happen to a third person does not make the defendant’s confession coerced. See Rogers v. Richmond, 365 U.S. 534, 535–536 (1961) (Pretense by police chief that he would take the defendant’s wife into custody unless defendant confessed made confession involuntary.); United States v. Johnson, 351 F.3d 254, 262 (6th Cir. 2003) (“[P]romises of leniency may be coercive if they are broken or illusory.”); Thompson v. Haley, 255 F.3d 1292, 1296–1297 (11th Cir. 2001) (no coercion when defendant claimed that he confessed to spare his girlfriend from being arrested because the police had probable cause to arrest her); Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir. 1986) (defendant told by police that unless he confessed, his wife would be charged; no showing that such a charge was impossible) (detective “had probable cause to arrest the petitioner’s wife for aiding in the commission of the robbery. The petitioner’s confession was therefore not involuntary by reason of his desire to extricate his wife from a possible good faith arrest.”). The trial court did not err in denying Brock’s motion to suppress his confession.

The court separately rules that counsel’s asserted failure to develop the facts more fully on the threat against Brock’s girlfriend wasn’t prejudicial: “Further, as we have seen, truthful representations about a third person’s potential criminal liability does not make a defendant’s confession involuntary,” ¶16.

Hearsay – Prior Identification

Statement of non-testifying declarant, identifying someone other than defendant as perpetrator of the crime, was inadmissible hearsay, ¶¶12-13. (The person identified was in custody at the time of the offense, ¶8, and obviously couldn’t have committed the crime.)

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