How “voluntary” does this sound to you?
The defendant was convicted of 1st-degree reckless homicide for the stabbing death of his girlfriend. He said that masked attackers broke into their apartment and stabbed him and his girlfriend. He called 911. The responding paramedics found the defendant conscious with stab wounds and his girlfriend dead. During his ambulance ride to the hospital (and while experiencing pain and disorientation), the defendant gave his account of the masked attackers to a policeman. Then, upon arriving at the hospital, the defendant was arrested on an unrelated crime. While handcuffed to a bed in ICU and medicated for pain and blood pressure, 2 police officers persuaded the defendant to give a recorded statement about the stabbings. The first 3 minutes (the part where police did the “persuading”) was not recorded. The rest was. The defendant moved to suppress the ambulance statement and the ICU statement.
Issue: Were the defendant’s statements voluntary?
Holding: Yes. Both statements were voluntary. Following State v. Hoppe, 2003 WI 43, ¶38, 261 Wis. 2d 294, 661 N.W.2d 407 , the court of appeals examined the totality of the circumstances, weighing the personal characteristics of the defendant against pressures imposed by law enforcement. It held that the defendant’s moaning due to pain did not interfere with his ability to speak. His inability to identify the date did not prevent him from answering questions appropriately. Besides he was 45, had prior contact with the justice system, and, most importantly, failed to identify any coercive tactics used by the police. Slip op. ¶¶ 19-22 (citing State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987)). Furthermore, Mincey v. Arizona, 437 U.S. 385 (1978)(statements to police from hospital bed suppressed) doesn’t apply here because Mincey’s injuries were worse, he couldn’t talk, and he repeatedly asked for a lawyer. Slip op. ¶¶ 23.
The oddities: Judging from this decision, the statements at issue were not incriminating so what difference would suppression of them make? The briefs don’t say. Indeed, the State points out that neither a recording nor a transcript of the hospital statement were in the appellate record. So we don’t know what the defendant really said. One might expect the court of appeals to get in a huff over that omission, but the decision is mum. It did get miffed over the defendant’s failure to cite to the record for its description of what transpired during the 3 minutes before the recording began, and thus refused to draw an adverse inference from the officers’ failure to record those 3 minutes.
Judicial notice. Even worse, the court of appeals went outside the record to decide for itself that the defendant was familiar with the criminal justice system and hence “less vulnerable to any alleged police pressure.” Specifically, the State’s brief, invoking the “judicial notice” rule, directed the court to CCAP entries showing other cases where the defendant was charged with crimes and listed those crimes by name. Foul! There was no evidence or hearing on the defendant’s experiences in those cases. Who knows whether they made him more vulnerable or less vulnerable to police pressure? (What if the police beat him in one of those cases?) This seems to be an improper application of § 902.01, which authorizes judicial notice of “facts not subject to reasonable dispute.” By all means, take judicial notice of a judgment entered on CCAP. But, sorry, inferring invulnerability to police pressure based on a short list of CCAP cases is a finding of fact, which the court of appeals lacks jurisdiction to do. Wurtz v. Fleischman, 97 wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980)(citing Wis. Const. Art. VII §5(3)).