On Point

Oneida Co. DSS v. Therese S., 2008 WI App 159

Grounds

Issue/Holding: Informing the parent of potential “dispositions in a general sense” is not enough to satisfy § 48.422(7)(a):

¶16      Thus, at the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination. Additionally, we conclude that in order for the court’s explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that “[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition ….” Wis. Stat. § 48.426(2).

¶17      We decline, however, to adopt the expansive approach proffered by Therese, requiring courts to inform parents in detail of all potential outcomes, including all alternatives to termination. …

Potential Disposition

¶8 Regarding the first alleged deficiency, it is undisputed that the circuit court never etablished on the record whether Therese understood she would be found unfit to parent as a result of her plea. Therese contends the circuit court was required to inform her of this direct consequence because Wis. Stat. § 48.424(4) required the court to find Therese unfit.

¶9 The County responds that, because of the Wis. Stat. § 48.422(7)(c) factual basis requirement, a parental unfitness finding is not automatic and, therefore, not a direct result of the plea. The County is mistaken. Section 48.422(7) requires courts to establish a factual basis “[b]efore accepting an admission ….” Thus, once the court accepts a no contest plea at the grounds stage, the parent must be found unfit. See Sheboygan County v. Julie A.B, 2002 WI 95, ¶26, 255 Wis. 2d 170, 648 N.W.2d 402.

¶10 We conclude that in order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. …

Donald Calloway v. Montgomery, 512 F. 3d 940, No. 07-1148, 1/14/08

Issue/Holding: Where the Supreme Court has expressly declined to rule on the issue (or on one in a very similar) context) to the issue on habeas review, there is no clearly established precedent within the meaning of AEDPA.

Andrew Lockhart v. Chandler, 446 F.3d 721 (7th Cir 2006) (challenge to lack of knowledge of mandatory additional term of supervised release not cognizable) followed.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: “Under the above case law, it is clear that, if Cole did invoke his Fifth Amendment/Miranda right to counsel when he was arrested on the battery charge, then the statement he gave Officer Riley while still in custody is inadmissible even if Cole’s waiver of Miranda rights in that interview was otherwise valid,” ¶28.

Is there an expiration date on a prior assertion of counsel? The court of appeals thought not; note, however, the pending Maryland v. Shatzer, USSC No. 08-680, cert granted 1/26/09, which raises this very question (albeit under extreme facts: the assertion was 3 years earlier in that case, while in Coles’ it was about 2 months).

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding:

¶38      The parties have not provided, and we have not discovered, any case that addresses the burden of proof in a factual context similar to this—where the defendant asserts he previously invoked his right to counsel as a basis for invalidating a later waiver. ^[9] However, we are persuaded that placing the burden on the State to show a prior waiver of this right, where the defendant has timely raised the issue, is more consistent with the principles established in existing case law. …

¶39   We emphasize that, in order for the State to have the burden of proof—both the burden of going forward with a prima facie case and the burden of persuasion—that the accused previously waived his or her Fifth Amendment/ Miranda right to counsel, the defendant must timely put the State on notice that he or she is claiming he or she did not waive this right. See Santiago, 206 Wis. 2d at 20-21, 25-26 (State need not in every case present the foreign language Miranda warnings and their translation in order to make a prima facie case of a valid waiver; but it must do so when the defendant puts the State on timely notice—either in the motion to suppress or during the State’s initial presentation of evidence—that he or she is claiming the foreign language warnings were inadequate). Here, Cole’s motion to suppress put the State on timely notice that he was claiming his statement to Officer Riley was inadmissible because he had previously invoked his Fifth Aamendment/ Miranda right to counsel when interviewed by Officer Gonzales on the battery charge.

¶40   Because we conclude the State had the burden of proof—both the burden of producing evidence to establish a prima facie case and the burden of persuasion—that Cole previously waived his Fifth Amendment/ Miranda right to counsel, we agree with Cole that the court erroneously placed the burden on him to prove he had invoked that right.

Remedy for this misallocated burden of proof is remand for correct determination by the circuit court, ¶¶41-44. Note that the court assumes that, so long as the suspect remains in continuous custody, the Edwards rule remains in force, ¶¶26-28. Cole asserted his right to counsel about two months earlier, after arrest on a different offense, and hadn’t been released; the court doesn’t reject (indeed, doesn’t really address) the question of whether the passage of time might vitiate Edwards. That assumption may very well turn out to be correct, but the cautious practitioner will at least want to be aware of, and keep an eye on, Maryland v. Shatzer, USSC No. 08-680, cert granted 1/26/09, which raises this very question.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: The State bears the burden of proof, by preponderance of evidence, of a valid waiver of Miranda rights, ¶27.

¶35      As we have stated above, it is the State’s burden to prove by a preponderance of the evidence that the defendant validly waived his Miranda rights and that the statement was voluntary. See Jiles, 262 Wis. 2d 457, ¶26. The State accomplishes this by, first, producing evidence to establish a prima facie case.  See State v. Santiago, 206 Wis. 2d 3, 18-19, 556 N.W.2d 687 (1996). If the evidence does not establish a prima facie case, the State does not meet its burden of persuasion.  See id. at 26; see also Jiles, 262 Wis. 2d 457, ¶46 (defense counsel could have refrained from producing evidence because the State failed to meet its initial burden of production). In other words—at least in the only cases we have found on this point in the Miranda/waiver context—the State’s burden of proof consists of both the burden of the initial production of evidence for a prima facie case and the ultimate burden of persuasion. See State v. Armstrong, 223 Wis. 2d 331, 344 n.19, 588 N.W.2d 606 (1999) (citing Santiago, 206 Wis. 2d at 19).

¶36      If the State does establish a prima facie case of waiver and voluntariness, then, in the absence of countervailing evidence, the statement should be admitted. State v. Mitchell, 167 Wis. 2d 672, 696, 482 N.W.2d 364 (1992).

State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup

Issue/Holding:

¶38      In the case at hand, we conclude, as did the circuit court, that the defendant’s statement was voluntary. The record contains no evidence that would give rise to any concerns regarding his personal characteristics. Davis, at the time this occurred, was 43 years old. While the defendant’s brief indicates that Davis only possesses a middle school level education, we must defer to the trial court’s judgment that Davis was not at such an educational disadvantage to render his personal characteristics at issue.

¶39      We also do not find evidence that law enforcement used coercion or other forms of improper conduct in order to elicit Davis’s incriminating statement. The duration of questioning was not lengthy, no physical or emotional pressures were used, and no inducements, threats, methods, or strategies were employed to ascertain an incriminating statement from the defendant.

¶40      Davis’s participation was voluntary in every way: Davis agreed to talk and take the voice stress analysis when he was in his own home. Davis came to the police station on his own terms including when and how he intended to get there.

…

¶42      Merely because one is administered a voice stress analysis or polygraph test does not render a subsequent statement per se coercive. The proper inquiry is not only whether a test was taken, but rather, whether a subsequent statement was given at a distinct event and whether law enforcement used coercive means to obtain the statement. An important inquiry continues to be whether the test result was referred to in order to elicit an incriminating statement. See Johnson, 193 Wis.  2d at 389. Here, Davis did not make a statement to Detective Buenning, the tester. There is no question that the test was over. Davis had gone from one room to another room. In addition, the interviewer, Detective Swanson, never referenced the examination or its results during the time Davis gave his statement. No coercive measures were used to elicit the statement. Accordingly, Davis’s statement was voluntary.

State v. Danny G. Harrell, 2008 WI App 37
For Harrell: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Expert opinion that Harrell is sexually violent was derived from his compelled, incriminatory statement and therefore also inadmissible, ¶¶14-35.

The court essentially tracks the discussion in Mark, which therefore won’t be repeated, and applies it to the particular facts. The court also reserves authority to remand for a “ Kastigar” hearing, ¶32 n. 11, but decides that’s unnecessary on this record.