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State v. Gregory M. Sahs, 2009AP2916-CR, District 1, 10/26/10, review granted 11/14/12

Voluntariness – Statements to Probation Officer

court of appeals decision (3-judge, not recommended for publication), supreme court review granted 11/14/12; for Sahs: Mark S. Rosen; BiC; Resp.

Sahs’ claim that his statements to his probation officer were given under compulsion is rejected, because the premise for the claim – a DOC form cautioning that he must reveal his activities else face probation revocation – wasn’t made part of the record:

¶8        The document that Sahs relies upon is not a part of the record.  Sahs did not offer the DOC form with his written statements into evidence at the motion hearing.  Therefore, we have nothing before us indicating that Sahs’s statements were ever written down, let alone compelled.  We will not “reweigh the evidence … but will search the record for evidence that supports findings the trial court made, not for findings it could have made but did not.”  Dickman v. Vollmer, 2007 WI App 141, ¶14, 303 Wis. 2d 241, 736 N.W.2d 202.  Neither party requested an evidentiary hearing and both parties determined that the trial court should make findings of fact based upon the briefs.  The trial court also noted that it did not have an affidavit before it, but rather was dealing only with Sahs’s assertions.  The trial court found Sahs’s statements on January 12, 2007, were not made in response to questions from Agent Krause. The trial court further noted that Sahs voluntarily called Agent Krause and made admissions to violating his probation rules at the outset of their meeting.  None of his admissions appear in the record on a DOC form.  “[W]hen an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court’s ruling.”  Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App. 1993).  There is evidence to support the trial court’s assessment of the facts and its resulting determination that Sahs’s statements were not compelled.

The mere fact that someone under supervision is required to report truthfully to his p.o. is insufficient to establish compulsion. Rather, the question is whether the person was required to answer over a valid claim of privilege, ¶9, citing State v. Mark, 2006 WI 78, ¶25, 292 Wis. 2d 1, 718 N.W.2d 90. Nothing in this record indicates that Sahs was aware of the threat of revocation for failure to reveal his activities “at the time of his voluntary admissions,” therefore the facts don’t support compulsion to talk, ¶9.

The privilege, then, isn’t self-effectuating but must be asserted. At least, as a general matter; there is a “penalty exception,” 2006 WI 78, ¶27 n. 8, which recognizes that any answers given in the face of express or implied threats to revoke upon invoking the 5th are deemed compelled. Thus, as illustrated by Mark’s subsequent appeal after remand, the manifest presence of compulsion obviates the need for such an assertion, State v. Mark, 2008 WI App 44, ¶¶16-19 (clear warning of penalty for failing to talk – revocation – rendered Mark’s statements involuntary). Mark fell within that exception, Sahs apparently didn’t.

For somewhat more detailed discussion on operative principles, see post on State v. Ronnie L. Peebles.

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