On Point

State v. Phillip K. Saeger, 2009AP2133-CR, District 2, 8/11/10

court of appeals decision (3-judge, not recommended for publication); for Saeger: Michael J. Burr; BiC; Resp.

Right to Silence During Custodial Interrogation

Invocation of the right to silence during custodial interrogation must be clearly articulated, holding to that effect in State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996) deemed ratified by Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). Saeger’s statement (“I’m done. This is over.”) wasn’t sufficiently clear to require cessation of interrogation.

¶10 In Wisconsin, a statement is equivocal as a matter of law when there are reasonable competing inferences to be drawn from it. State v. Markwardt, 2007 WI App 242, ¶36 ….

¶11 … One detective interviewing Saeger testified that he was uncooperative and lied often. He also testified that his interviewing technique involved calling the suspect on his or her lies. Further, the detectives knew that Saeger was an excitable person, and just before his outburst, Saeger and the detectives were arguing about if he could be charged federally. It was during this argument that Saeger stated, “I’m done.  This is over.” Taken in context, it was reasonable for the detectives to conclude that his statement was merely a fencing mechanism to get a better deal—one that would free him of exposure to federal charges. We acknowledge that a reasonable person could also read his statement to mean that he actually wanted to invoke his right to remain silent. Under Ross, Berghuis and Marquardt, however, since there are reasonable competing inferences that could be drawn from the statement, the statement is equivocal as a matter of law and is therefore insufficient to invoke the right to remain silent. Saeger’s first issue fails.

Voluntariness – Police Promises

Police promises that Saeger wouldn’t be prosecuted federally didn’t coerce his resultant statement.

¶14 … Saeger was bargaining to receive a deal that would free him of exposure to federal charges and he received what he bargained for. While the detectives did not have the authority to decide whether to charge Saeger federally, they did have the option to refrain from referring his case to federal authorities. They did not refer the matter to the U.S. Attorney and Saeger was never charged with federal gun violations. The fact that the detectives kept their promise shows that there is no affirmative proof of improper police conduct, and therefore we conclude that the statement was voluntary. We affirm the circuit court’s denial of the motion to suppress the statement.

A potentially vexing problem. True, as the court indicates, involuntariness requires “improper police practices,” ¶13, and at least seemingly nothing improper occurred. But this principle is true only up to a point, as suggested by the idea “that in Wisconsin a probationer’s answers to a probation agent’s question prompted by accusations of criminal activity are ‘compelled,'” State v. Thompson, 142 Wis.2d 821, 831, 419 N.W.2d 564 (1987). And: New Jersey v. Portash, 440 U.S. 450, 459 (1979) (“Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt.”) In other words, a probationer may not be “required to choose between giving answers which will incriminate him in a pending or subsequent criminal prosecution and losing his conditional liberty as a price for exercising his fifth amendment right to remain silent,” id. at 833. In effect, there’s a grant of use-immunity in the criminal case, but the statement can be used administratively to support revocation, see generally, State v. Evans, 77 Wis.2d 225, 252 N.W.2d 664 (1977). A Hobson’s choice, to be sure, and though not constitutionally coercive in the administrative proceeding, the statement certainly is involuntary for criminal case purposes. The grant of use-immunity saves the practice from 5th amendment taint. Police “misconduct” simply isn’t relevant; the person is “compelled” to talk within the meaning of the 5th A because of the threatened loss of liberty if he doesn’t talk, not because of improper police practice. Returning to Saeger: the police threatened him with 25 years in the federal pen, but then promised to make that go away if he talked. How different is that, really, from an Evans-Thompson problem? True, Saeger ended up with transactional immunity from federal prosecution — the cops kept their end of the deal, as the court of appeals stresses — but the use-immunity enjoyed by a probationer doesn’t make his statement voluntary. There’s an argument, then, that the transactional immunity promised Saeger was indeed coercive, no matter that the deal was kept. Don’t talk and you’ll get 25 years, talk and you won’t. But analogizing Sager’s transactional immunity to an Evans-type use immunity is admittedly a bit strained: a probationer must talk to his agent, else he will lose his freedom; Saeger wasn’t necessarily under quite that type of compulsion to talk. He was genuinely fearful of federal prosecution and, perhaps, he willingly undertook to bargain his way out. You can certainly see the court’s point. On the other other hand, if you do require impropriety, it might be in the police doing precisely what they were not empowered to do, bargain on behalf of the U.S. Attorney. And when you get down to it, what the cops said in so many words was, Talk and you’ll shave 25 years off your sentence (“negotiating took place and the detectives agreed that they would not bring federal charges against him or his girlfriend. This agreement culminated in a written statement … that neither county would charge him federally,” ¶3). That’s an awfully strong inducement to loosen your tongue. Too much of one to countenance? You be the judge.

court of appeals decision (3-judge, not recommended for publication); for Watling: Margaret A. Maroney, Shelley M. Fite, SPD, Madison Appellate; BiC; Resp.; Reply

Sentencing – Exercise of Discretion – Sex Offender Registration

The sentencing court properly exercised discretion in requiring Watling to register as a sex offender on his conviction for 4th-degree sexual assault, ¶¶7-15.

Registration requirements are set out in § 301.45. Registration is mandatory for certain offenses enumerated in § 973.048, otherwise discretionary if the conduct was sexually motivated and registration serves public protection, ¶9; and, generally, State v. Peter R. Martel, 2003 WI 70. Watling falls in the discretionary category, and though the sentencing court’s determination was shallow (¶4: not much more than stressing age difference between Watling and victim, 46 – 14), it’s deep enough to survive deferential review, ¶¶11-14. Of particular note, though: originally charged with a mandatory-registration crime, Watling plea-bargained it down to a discretionary one, ¶15, and perhaps that weighed heavily in the balance. That, and his admitted tendency to get “nasty and promiscuous when he drinks,” id. You might think that the standard no-alcohol condition would provide adequate protection from Watling’s lubricated promiscuity but you would be wrong. Making his life as utterly difficult as possible by branding him publicly forever as a sex offender will keep him sober and even-keeled.

Separately: Watling was also convicted of non-registration offenses (bigamy and bail jumping), but reference in those convictions that he comply with the registration ordered in the sexual assault was proper, ¶¶16-20. Watling argues that “a court cannot order that a defendant comply with a condition mandated in another case if there is a specific statutory section governing when the condition may be applied,” ¶18, State v. David W. Oakley, 2000 WI 37, ¶27. Bigamy and bail jumping aren’t registration offenses, therefore registration couldn’t be ordered in those cases. The court rejects the argument, in effect limiting Oakley to its facts. Oakley, the court says, merely means that “conditions of probation should not be used as a collection device for the payment of old fines,” ¶18. Yet, there is ample authority, indeed including Oakley itself, for the broader proposition advanced by Watling that sentencing authority to order a condition of supervision fails when a specific statutory section disallows it: State v. Amato, 126 Wis.2d 212, 375 N.W.2d 75 (Ct. App. 1985) (no authority to impose cost of prosecution as condition of probation, where such item was expressly prohibited by cost statute);  State v. Peter R. Martel, 2003 WI 70, ¶¶28-35 (no authority re: sex-offender registration where more specific registration statutes didn’t apply), State v. Oakley, 2000 WI 37, ¶27 (no authority re: payment of old fine given conflict with penalty scheme in § 973.07), State v. James A. Torpen, 2001 WI App 273, ¶16 (no authority re: restitution not allowed under § 973.20), State ex rel. Carl Kaminski v. Schwarz, 2001 WI 94, ¶27 (“a rule of probation imposed by a probation agent, intended to supplement court-imposed conditions of probation, may not validly contravene the directive of a statute”). Bail jumping and bigamy are not registration offenses, so what was a registration requirement doing in those judgments? This, the court says:

¶17 What the circuit court actually ordered in the bigamy and bail jumping convictions was that Watling comply with the sex offender registration mandate in the sexual assault case while on supervision for those related crimes. As the State points out, Watling was ordered to register as a sex offender for his sexual assault offenses only; the conditions in the bigamy and bail jumping cases related back to the order in the sexual assault case. There was no order to register based on his bigamy conviction or his bail jumping conviction. We also point out that the conditions for all of the cases were alike since, by virtue of the plea agreement, Watling was sentenced in all three counts at the same hearing. The conditions of extended supervision and probation in the remaining two counts were based on the same facts and the same dismissed and read-in charges we discussed above. We therefore conclude that it was reasonable and appropriate for the court to refer to the registration requirement in the sexual assault case because the condition was reasonably related to the dual purposes of extended supervision—rehabilitation and the public interest. See State v. Miller, 175 Wis. 2d 204, 208-09, 499 N.W.2d 215 (Ct. App. 1993).

OK. But that explains little. The non-registration cases imposed no registration order of their own, but instead ordered that Watling comply with the registration requirement in the sexual assault case? Isn’t that basically what Watling argues the court had no authority to do? The fact remains that Watling must register per the assault case, so as a practical matter it may not much matter whether he must also do so under the other cases. Still, the court’s analysis perplexes, though the State’s argument helps quite a bit: the challenged condition “amounted to an order that Watling obey the law. Non-compliance with a registration order is a felony. See Wis. Stat. § 301.45(6),” Resp. Br., p. 14. To an extent, the condition is superfluous — “Obey all criminal laws” always applies to supervision, and its violation is always potential ground for revocation. At the same time, precisely because it is superfluous, the condition is innocuous. But that is not really how the court approaches the problem, instead complicating it unnecessarily.

Tangent: the court is miffed at Watling’s law-flouting bigamy, ¶19. Fine. But plural marriage as a constitutionally protected right is a non-frivolous argument. It is a matter of time before someone litigates it.

State v. Erik B. Hudson, 2010AP000780-CR, District 3, 8/10/10

court of appeals decision (1-judge, not for publication); for Hudson: George S.Pappas, Jr.; BiC; Resp.

While “better practice” would have been to strike and give a curative instruction following a witness’s non-responsive testimony, the trial court’s failure to do so wasn’t plain error.

State v. Glenn L. Earhart, 2010AP348-CR, District 3, 8/10/10

court of appeals decision (1-judge, not for publication); for Earhart: Patrick J. Stangl; BiC; Resp.; Reply

Reasonable Suspicion – Informant Reliability

Authorities were under no obligation to check into a citizen-informant’s criminal record before acting on the information she related.

¶9 Earhart argues Kistner unreasonably relied on Hitchon’s report because she was a known criminal. … Thus, Earhart insists Kistner should have further corroborated Hitchon’s allegation, suggesting Kistner should have reviewed phone records.

¶10 We reject Earhart’s absurd argument. Police need not conduct a criminal record search on a victim as a prerequisite to questioning the alleged actor, regardless of whether the investigating officer knows the victim has been arrested in the past. …

¶11 Here, Kistner set out to investigate Hitchon’s complaint further, seeking Earhart for voluntary questioning. This was eminently reasonable. At worst, Earhart was inadvertently temporarily detained due to the timing of his return home. Hitchon’s minor criminal record and pending operating after revocation charges do not constitute special circumstances that would appreciably undermine her credibility as a victim witness. In any event, those circumstances were unknown to Kistner at the time and, therefore, are not part of the totality of the circumstances bearing on reasonable suspicion.

court of appeals decision (3-judge, not recommended for publication); for Lang: Mary D. Scholle, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Search Warrant – Probable Cause

Affidavit by a detective, containing statements made by a recently arrested “informant” who said that “Troy” at the target residence had traded him cocaine for stolen property, supplied probable cause for the warrant application. The informant’s reliability was established by:

• statement’s against-interest nature;
• personal observation of the incriminating information;
• level of detail provided;
• independent police corroboration of “many” details.

United States v. Mykytiuk, 402 F.3d 773 (7th Cir. 2005) and United States v. Koerth, 312 F.3d 862 (7th Cir. 2002), distinguished, largely because “in neither of those cases did the police corroborate or provide foundation for any of the information provided to them by the confidential informants,” ¶29. Moreover, in both the cited cases, despite conceded absence of probable cause, the court upheld the warrant under the good-faith doctrine–an issue the court here declines to reach in light of its conclusion that probable cause did exist, ¶29 n. 5.

The affidavit, as suggested above, was based on the assertions of someone in a real bind, an informant who’d just been nailed in a burglary and had admitted involvement in a string of other burglaries, ¶5. Even without knowing anything more about him, such as whether he was subject to repeater enhancement or was on supervision and thus subject to revocation, it’s clear he faced a good deal of time. So he helpfully told the police he had exchanged the stuff stolen in the burglaries for cocaine at “Troy’s” house. The warrant application description of him as “a confidential citizen informant,” ¶5, is problematic: a “citizen informant” is someone who comes forward and volunteers information without any motive to lie; this informant, facing serious time, was in a highly pressurized situation. The court doesn’t explicitly treat him as a “citizen informant,” but nonetheless does tend to minimize his predicament, ¶21 (seeming to say, without qualification, that against-interest statements closely related to the crime under investigation may be taken at face value). This isn’t quite right. State v. Romero, 2009 WI 32, relied on by the court for this proposition, is readily distinguishable; there, the informant was a “participant in a police sting,” and thus was someone who “unwittingly” provided information to the police, Romero, id., n. 3. As the Romero court went on to say (¶36), where the declarant has no apparent motive to speak dishonestly, you can take his against-interest statements at face value. But that isn’t exactly what is going on in this case, so the point is, the court’s analysis at ¶21 leaves something to be desired. That said, the court goes on to stress police corroboration of the details provided by the informant, something that puts the result on firmer footing.

Litigation occurred in the context of an ineffective-counsel claim, for failing to file a suppression motion. Because the court concludes that probable cause exists, the claim necessarily fails, ¶¶17, 30.

State v. Roger D. Godwin, No. 2009AP2999-CR, District 4, 8/5/10

court of appeals decision (1-judge, not for publication); pro se

Recusal – Waiver

¶10      Godwin argues that Judge VanDeHey should have recused himself from the case because one of the judge’s colleagues, Judge Curry, and other courthouse staff were Godwin’s victims in the bomb threat case. The State argues that the judge was not required to recuse under WIS. STAT. § 757.19(2), and, regardless, Godwin waived his right to allege a potential conflict.

¶11      We agree with the State that Godwin waived his right to raise this objection at the plea and sentencing hearing. To the extent Judge VanDeHey may have had a conflict requiring recusal under WIS. STAT. § 757.19(2), he made a full and complete disclosure on the record of the potential conflict as required by § 757.19(3) and offered to recuse himself from the case. In response, Godwin affirmatively stated that he wanted Judge VanDeHey to stay on the case, and that he was waiving any potential conflict. Moreover, Godwin indicated that he had been taking his medication at the time of the plea hearing, and he does not now argue that his bipolar disorder affected the knowingness and voluntariness of his waiver. Accordingly, we conclude that Godwin explicitly waived any potential conflict consistent with § 757.19(3).

Guilty Plea – Factual Basis – Sexual Intercourse with Child

¶16      The record also supports the court’s determination that there was a sufficient factual basis to prove the offenses charged. The elements of the offense of sexual intercourse with a child under WIS. STAT. § 948.09 are as follows: (1) the defendant had sexual intercourse with the victim; (2) the victim had not attained the age of eighteen at the time of the alleged offense; and (3) the victim was not the defendant’s spouse at the time of the alleged offense.  See WIS JI—CRIMINAL 2138. The criminal complaint stated that S.S. alleged that she and Godwin engaged in sexual intercourse, that S.S. had attained the age of sixteen at the time of the alleged offense, and that S.S. was not Godwin’s spouse. The criminal complaint also states that Godwin admitted to engaging in sexual intercourse with S.S.  Based on these factual allegations, the circuit court’s determination that a sufficient factual basis existed to prove the offenses charged was not clearly erroneous.

State v. Laurence Evan Olson, 2010AP149-CR, District 4, 8/5/10

court of appeals decision (1-judge, not for publication); for Olson: Christopher W. Dyer; BiC; Resp.; Reply

¶11      WISCONSIN STAT. § 347.13(1) provides that “[n]o vehicle originally equipped at the time of manufacture and sale with 2 tail lamps shall be operated on a highway during hours of darkness unless both such lamps are in good working order.” WISCONSIN STAT. § 340.01(66) provides that “‘tail lamp’ means a device to designate the rear of the vehicle by a warning light.” We observe that the statute does not state that each bulb taken individually is a “tail lamp”; it defines a “tail lamp” as a “device.” Olson’s vehicle was equipped with two clusters of two bulbs each placed on opposite sides of the rear of the vehicle.  These clusters of bulbs function together as a single device. We therefore conclude that, consistent with the definition of the term provided in § 340.01(66), a tail lamp is a unitary “device” that may consist of two or more clusters of bulbs.

¶12      Turning to the facts of the present case, we note that it is undisputed that one of the two bulbs constituting the right tail lamp was burnt out at the time of the stop. The plain language of WIS. STAT. § 347.13(1) unambiguously requires that both tail lamps be “in good working order.” A tail lamp with a burnt out bulb cannot be said to be “in good working order.” Accordingly, we conclude that the traffic stop was valid in this case because the investigating officer had probable cause to believe that Olson’s vehicle was in violation of § 347.13(1).

And just why is that a lamp with one decent bulb is not in “good working order”? That it “cannot be said” to be so is something less than an explanation; indeed, is a declaration that explanation won’t be forthcoming. The court’s conclusion might well be correct (as a matter of statutory construction; though it’d be nice to see at least a stab taken at the legislative history), but hardly seems self-evident. If the lamp, even with a burnt-out bulb, can be seen perfectly well by other drivers, then why can’t it be said that the lamp is in good working order?