2019 WI 63
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2058-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Peter J. Hanson,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 384 Wis. 2d 413,921 N.W.2d 517
(2018 – unpublished)
OPINION FILED: June 5, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 15, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Oconto
JUDGE: Michael T. Judge
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Ana L. Babcock and Babcock Law, LLC, Green Bay. There
was an oral argument by Ana L. Babcock.
For the plaintiff-respondent, there was a brief filed by
Scott E. Rosenow, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Scott E. Rosenow.
2019 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2058-CR
(L.C. No. 2013CF41)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUN 5, 2019
Peter J. Hanson, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. Peter Hanson ("Hanson")
seeks review of the court of appeals'1 decision affirming the
circuit court's2 denial of his postconviction motion.
¶2 Chad McLean ("McLean") disappeared on the night of
February 22, 1998. His body was found one month later in the
Pensaukee River with four gunshot wounds to his head. The case
went cold until 2009 when Hanson's estranged wife Kathy Hanson
1State v. Hanson, No. 2016AP2058-CR, unpublished slip op.
(Wis. Ct. App. Sept. 18, 2018).
2The Honorable Michael T. Judge, of the Oconto County
Circuit Court presided.
No. 2016AP2058-CR
("Kathy") gave a statement to police implicating Hanson in
McLean's murder. In November 2012, a judge in Oconto County
held a John Doe proceeding to further investigate McLean's
murder.3 Hanson testified at that proceeding, made incriminating
statements, and was subsequently charged with McLean's murder.
Hanson was convicted and sentenced to life imprisonment without
the possibility of parole.
¶3 Hanson challenges the admissibility at trial of
portions of his testimony from the John Doe proceeding on two
grounds. First, Hanson contends that the admission of his John
Doe testimony regarding Kathy's statement to police inculpating
him in McLean's murder violated his Sixth Amendment right to
confrontation. Second, Hanson claims his trial counsel was
ineffective for failing to object to the admission of his John
Doe testimony because, at the time he testified, he was in
3
In 2011, a John Doe proceeding was convened, Oconto County
Case No. 2011-JD-3, to investigate McLean's murder. Wisconsin's
John Doe proceeding, codified at Wis. Stat. § 968.26, "serves
both as an inquest into the discovery of crime and as a screen
to prevent 'reckless and ill-advised' prosecutions." State ex
rel. Reimann v. Circuit Court for Dane Cty., 214 Wis. 2d 605,
621, 571 N.W.2d 385 (1997). "In order to commence a John Doe
proceeding, the complainant, whether it be the district attorney
or anyone else, must demonstrate to the John Doe judge 'that he
has reason to believe that a crime has been committed within the
jurisdiction.'" State ex rel. Two Unnamed Petitioners v.
Peterson, 2015 WI 85, ¶85, 363 Wis. 2d 1, 866 N.W.2d 165 (quoted
source omitted). Section 968.26 gives a John Doe judge broad
powers to determine the extent of the investigation and whether
the investigation should be conducted in secret. Id., ¶88.
2
No. 2016AP2058-CR
custody on an unrelated matter and not read all of the Miranda
warnings.4
¶4 We conclude that Hanson's Sixth Amendment right to
confrontation was not violated because his John Doe testimony
regarding Kathy's statement to police was not offered to prove
the truth of the matter asserted. We also conclude that
Hanson's ineffective assistance of counsel claim fails because
the law was unsettled as to whether Miranda warnings were
required at John Doe proceedings. Finally, we determine as a
matter of first impression that Miranda warnings are not
required at John Doe proceedings.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶5 On February 22, 1998, McLean and his friend Cory Byng
("Byng") went to Byng's uncle's house for a cookout. Hanson and
his friend Chuck Mlados ("Mlados") also went to the cookout,
arriving in a pickup truck driven by Hanson. At around 9:30 or
10:00 p.m., Hanson, McLean, and Mlados left Byng's uncle's
house. Hanson and Mlados alleged that they dropped McLean off
at the Hi-Way Restaurant and Truck Stop on the way back to
Hanson's house. The restaurant surveillance footage from that
night showed Hanson and Mlados buying beer at 9:53 p.m., but
McLean was not seen in any of the footage. At trial, six
employees testified that they did not see anyone fitting
McLean's description at the restaurant that night.
4 Miranda v. Arizona, 384 U.S. 436 (1966).
3
No. 2016AP2058-CR
¶6 Approximately one month later, McLean's body was
recovered in the Pensaukee River, 1.3 miles downstream from
Hanson's house. McLean had four gunshot wounds to his head.
The case went cold for over a decade until 2009, when Kathy told
police that Hanson had confessed to killing McLean.
¶7 In November 2012, Hanson, who was in custody at the
Oconto County jail on charges unrelated to the homicide, was
called as a witness to testify at a John Doe proceeding
regarding McLean's murder. Prior to questioning, the John Doe
judge read Hanson most, but not all, of the Miranda warnings.5
Hanson made incriminating statements at the proceedings. In
March 2013, the John Doe investigation was closed and the John
Doe judge signed an order finding probable cause and authorizing
the issuance of a criminal complaint.
¶8 At trial, the State introduced portions of Hanson's
John Doe testimony. Hanson objected on Confrontation Clause and
5 Miranda requires that "Prior to any questioning [of a
person in custody], the person must be warned that he has a
right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed."
Miranda, 384 U.S. at 444. It is undisputed that the John Doe
judge informed Hanson that his testimony could be used against
him in the John Doe proceeding or in another legal proceeding,
that he had the right to have an attorney present during his
testimony, and that he could stop the questioning in order to
consult an attorney. Hanson, No. 2016AP2058-CR, ¶6 n.2. It is
undisputed that the John Doe judge did not advise Hanson of his
right to have counsel appointed if he could not afford to hire
his own counsel. Id.
4
No. 2016AP2058-CR
hearsay grounds.6 The circuit court overruled Hanson's objection
and held that the testimony qualified as an admission by a party
opponent pursuant to Wis. Stat. § 908.01(4)(b)1. (2017-18),7 and
therefore was not hearsay and did not violate his Sixth
Amendment right to confrontation.
¶9 The jury also heard from three witnesses who testified
that Hanson had confessed to killing McLean. Kenneth Hudson
testified that he had been Hanson's best friend and that about a
month and a half after McLean's body was found, Hanson told him
that he had shot McLean and dumped his body in the river. Barry
O'Connor, a friend of Hanson, testified that in 2008 Hanson told
him that about ten years earlier he and Mlados had accidentally
killed someone and dumped the body in a river. O'Connor also
testified that Hanson told him he had confessed the murder to
Kathy, but that she could not testify against him because she
was now dead. Jeremy Dey testified that while he and Hanson
were in the Oconto County jail together in 2013, Hanson told him
that he had shot McLean and dumped his body in a river. Dey
further testified that Hanson told him Kathy had given the
police a statement about McLean's murder that was against
Hanson's interests.
¶10 Hanson did not call any witnesses at trial and chose
not to testify. Hanson argued to the jury that the case against
6 Kathy died prior to the John Doe proceeding.
7 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
5
No. 2016AP2058-CR
him was circumstantial and that the State had failed to meet its
burden to prove beyond a reasonable doubt that he had killed
McLean.
¶11 During its deliberations, the jury asked the circuit
court if it could review "anything that may pertain to Kathy
Hanson's statement to the police." The circuit court denied
this request. The jury ultimately found Hanson guilty of first-
degree intentional homicide as a party to the crime and he was
sentenced to life imprisonment without the possibility of
parole.
¶12 Hanson filed a postconviction motion seeking a new
trial based upon, among other things, the alleged ineffective
assistance of his trial counsel. At the Machner8 hearing
regarding Hanson's claims, Hanson's trial counsel testified that
he did not object to the admission of Hanson's John Doe
testimony on Miranda grounds because he did not "believe that
Miranda is applicable to a John Doe proceeding." The circuit
court denied Hanson's postconviction motion, concluding that
"the colloquy between Peter Hanson and the Court satisfies any
right that the defendant had to an attorney at a John Doe
proceeding."
¶13 Hanson appealed the denial of his postconviction
motion and the circuit court's decision to overrule his
objection regarding his Sixth Amendment right to confrontation.
8 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
6
No. 2016AP2058-CR
Hanson raised two issues on appeal: (1) whether the circuit
court improperly admitted his John Doe testimony regarding
Kathy's statement to police in violation of his Sixth Amendment
right to confrontation;9 and (2) whether his trial counsel was
ineffective for failing to call any potentially exculpatory
witnesses10 and for failing to object to the admission of his
John Doe testimony on the grounds that he was not read all of
the Miranda warnings at the John Doe proceeding.
¶14 As to Hanson's Confrontation Clause claim, the court
of appeals assumed without deciding that the circuit court's
admission of Hanson's John Doe testimony was error. State v.
Hanson, No. 2016AP2058-CR, unpublished slip op., ¶13 (Wis. Ct.
App. Sept. 18, 2018). However, the court of appeals was
"persuaded that any error in the admission of the challenged
evidence was harmless because it duplicated other, unchallenged
testimony." Hanson, No. 2016AP2058-CR, ¶14. Three witnesses
testified that Hanson confessed to killing someone and dumping
the body in a river. Two witnesses testified that Hanson
confessed the killing to Kathy and one witness testified that
Kathy told the police Hanson killed McLean. The court of
appeals was not persuaded by the jury's request to see evidence
regarding Kathy's statement to the police because the request
9
Hanson did not claim a violation of his right to
confrontation in his postconviction motion, but this issue was
preserved for review.
10
Hanson did not request review of this claim on appeal to
this court.
7
No. 2016AP2058-CR
was denied and the jury heard about Kathy's statement through
other unchallenged testimony. Hanson, No. 2016AP2058-CR, ¶15.
¶15 The court of appeals also rejected Hanson's
ineffective assistance of counsel claim. The court of appeals
held that "[r]egardless of whether counsel was deficient for
failing to object to the admission of [Hanson's John Doe]
testimony on Miranda grounds, we are convinced that such error
was not prejudicial to Hanson's defense." Hanson, No.
2016AP2058-CR, ¶31. Again, the court of appeals relied upon the
fact that the John Doe testimony regarding Kathy's statement
"merely duplicated other, unchallenged testimony." Hanson, No.
2016AP2058-CR, ¶32. Hanson then petitioned this court for
review.
II. STANDARD OF REVIEW
¶16 We review Hanson's claims that his Sixth Amendment
right to confrontation was violated and that his trial counsel
was ineffective. Whether a defendant's Sixth Amendment right to
confrontation was violated is a "'question of constitutional law
subject to independent review.'" State v. Nieves, 2017 WI 69,
¶15, 376 Wis. 2d 300, 897 N.W.2d 363 (quoted source omitted).
"We generally apply United States Supreme Court precedents when
interpreting" the Sixth Amendment and the analogous Article I,
Section 7 of the Wisconsin Constitution. State v. Jensen, 2007
WI 26, ¶13, 299 Wis. 2d 267, 727 N.W.2d 518.
¶17 A criminal defendant is guaranteed the right to
effective assistance of counsel under both the United States and
Wisconsin Constitutions. U.S. Const. amends. VI, XIV; Wis.
8
No. 2016AP2058-CR
Const. art. I, § 7; see also Strickland v. Washington, 466 U.S.
668, 686 (1984) (holding that the right to counsel includes the
right to effective assistance of counsel).11 "A claim of
ineffective assistance of counsel presents a mixed question of
law and fact." State v. Thiel, 2003 WI 111, ¶21, 264
Wis. 2d 571, 665 N.W.2d 305. We uphold the circuit court's
findings of fact involving the circumstances of the case and
trial counsel's conduct and strategy unless they are clearly
erroneous. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369
N.W.2d 711 (1985). The final determination of whether counsel's
performance satisfies the constitutional standard for
ineffective assistance of counsel is a question of law, which we
review de novo. Id. "To demonstrate that counsel's assistance
was ineffective, the defendant must establish that counsel's
performance was deficient and that the deficient performance was
prejudicial." State v. Breitzman, 2017 WI 100, ¶37, 378
Wis. 2d 431, 904 N.W.2d 93 (citing Strickland, 466 U.S. at 687).
If the defendant fails to satisfy either prong of the analysis,
we need not consider the other. Id.
11
The Sixth Amendment to the United States Constitution
provides: "In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence." The Wisconsin Constitution provides: "In all
criminal prosecutions the accused shall enjoy the right to be
heard by himself and counsel." Wis. Const. art. I, § 7. This
court has made clear that the test for ineffective assistance of
counsel articulated by the United States Supreme Court applies
to ineffective assistance of counsel claims under the Wisconsin
Constitution. State v. Sanchez, 201 Wis. 2d 219, 235-36, 548
N.W.2d 69 (1996).
9
No. 2016AP2058-CR
III. ANALYSIS
¶18 We first consider Hanson's claim that his Sixth
Amendment right to confrontation was violated. We then
determine whether Hanson's trial counsel was ineffective for
failing to object to the admission of his John Doe testimony on
the grounds that he was not read all of the Miranda warnings at
the John Doe proceeding. Finally, we determine as a matter of
first impression that Miranda warnings are not required at John
Doe proceedings.
A. Hanson's Sixth Amendment right to
confrontation was not violated.
¶19 Hanson asserts that his Sixth Amendment right to
confrontation was violated when the circuit court admitted
portions of his John Doe testimony into evidence at trial.
"'The Confrontation Clauses of the United States and Wisconsin
Constitutions guarantee criminal defendants the right to
confront witnesses against them.'" State v. Manuel, 2005 WI 75,
¶36, 281 Wis. 2d 554, 697 N.W.2d 811 (quoted source omitted).
In Crawford, the United States Supreme Court observed that the
Confrontation Clause "does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted." Crawford v. Washington, 541 U.S. 36, 59 n.9
(2004) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
Therefore, a crucial aspect of the Sixth Amendment right to
confrontation, pursuant to Crawford, is that it "only covers
hearsay, i.e., out-of-court statements 'offered in evidence to
prove the truth of the matter asserted.'" United States v.
10
No. 2016AP2058-CR
Tolliver, 454 F.3d 660, 666 (7th Cir. 2006). It is well
established that "out-of-court statements may be offered to
prove innumerable relevant propositions apart from the truth of
any matters (explicitly [or] implicitly[]) asserted." 7 Daniel
D. Blinka, Wisconsin Practice Series: Wisconsin Evidence
§ 801.302 at 768 (4th ed. 2017); see State v. Medrano, 84
Wis. 2d 11, 19-20, 267 N.W.2d 586 (1978) (reasoning that the
testimony was properly admitted "because it was not offered for
the truth of the statement"); Caccitolo v. State, 69
Wis. 2d 102, 107, 230 N.W.2d 139 (1975) ("the hearsay rule is
inapplicable to out-of-court assertions . . . if the statement
is not offered to prove the truth of the matter asserted.")
¶20 Our first inquiry, pursuant to Crawford, is to
determine whether the testimony is hearsay. The following
relevant testimony was read to the jury:
SPECIAL PROSECUTOR: Did you ever talk to your wife
Kathy about Chad McLean's death?
THE DEFENDANT: Well, of course. We talked about it a
lot.
SPECIAL PROSECUTOR: Okay. And at times Kathy
confronted you and said you were responsible for Chad
McLean's death?
THE DEFENDANT: No. She didn't do that until she was
trying to put me away before she died.
SPECIAL PROSECUTOR: Okay. But regardless of the
timing, at some point Kathy Hanson confronted you and
said you were responsible for Chad McLean's death?
THE DEFENDANT: Not to my face she didn't. She went to
the police.
11
No. 2016AP2058-CR
SPECIAL PROSECUTOR: At some point within the year
before she passed away, isn't it a fact that Kathy
confronted you about the Chad McLean death?
THE DEFENDANT: No. She never——we didn't talk about it
anymore. It wasn't until she kept trying to put me in
jail for little stuff through my probation officer
that then all the sudden she went to the police and
accused me of——that she thought that I killed Chad
McLean.
SPECIAL PROSECUTOR: But specifically she was telling
people that you had shot Chad McLean?
THE DEFENDANT: Well, not that I know of.
SPECIAL PROSECUTOR: Well——
THE DEFENDANT: She told the police.
SPECIAL PROSECUTOR: Who told you that she was saying
that you killed Chad McLean?
THE DEFENDANT: [Detective Darren] Laskowski.
....
SPECIAL PROSECUTOR: Question, have you ever told
anybody that her dying was the best thing that ever
happened to you?
THE DEFENDANT: Yeah.
SPECIAL PROSECUTOR: How many people have you told
that to?
THE DEFENDANT: A couple.
¶21 Hanson's John Doe testimony presents three layers of
out-of-court statements: (1) Hanson's statement made at the
John Doe proceeding about what Detective Laskowski told him; (2)
Detective Laskowski's statement to Hanson about what Kathy told
him; and (3) Kathy's statement to Detective Laskowski that
12
No. 2016AP2058-CR
Hanson killed McLean.12 The first layer is not at issue because
the parties ultimately agree that Hanson's statement was an
admission by a party opponent, pursuant to Wis. Stat.
§ 908.01(4)(b)1., and not hearsay.
¶22 The State asserts that Detective Laskowski's statement
to Hanson forms the basis for the State's introduction of
Hanson's John Doe testimony. The State argues that Detective
Laskowski's statement to Hanson, the second layer, was not
offered for the truth of the matter asserted, but to show
Hanson's consciousness of guilt. If we accept the State's
argument that Detective Laskowski's statement is not hearsay,
the same argument applies to the third layer, Kathy's statement
to Detective Laskowski.
¶23 According to the State, Detective Laskowski's
statement was not offered for the truth of whether Kathy
actually told Detective Laskowski that Hanson killed McLean;
but, rather, to show Hanson's belief that Kathy would testify
against him. Taken together with Hanson's statement that
Kathy's death was the "best thing that ever happened" to him,
the State claims there is an inference that Hanson was glad
12
The circuit court allowed this excerpt of the John Doe
proceeding into testimony based on its conclusion that it
qualified as an admission by a party opponent, pursuant to Wis.
Stat. § 908.01(4)(b)1. The parties now agree that the second
and third layer of out-of-court statements were not admissible
under § 908.01(4)(b)1.
13
No. 2016AP2058-CR
Kathy was dead so she could not testify that he killed McLean.13
Detective Laskowski's statement regarding what Kathy told him
was thus offered to prove Hanson's consciousness of guilt and
was not hearsay, as it is irrelevant whether Kathy actually made
a statement to Detective Laskowski.
¶24 Hanson asserts that because there is no overt link
between his statement that Kathy's death was the best thing that
ever happened to him and his knowledge that Kathy made a
statement to Detective Laskowski, the State's assertion of
consciousness of guilt is too attenuated. Hanson gives a number
of other reasons why he made the statement about Kathy's death,
including that he believed that Kathy had an affair and that she
was reporting "little stuff" to his probation officer in an
attempt to put him in jail. Hanson contends that the State's
purported use of the testimony surrounding Kathy's statement to
police was just a "ruse" to put Kathy's unconfronted testimonial
statement before the jury.
¶25 A mere claim that a statement is not offered for its
truth is not enough to overcome a hearsay challenge to its
admissibility. "When the State proffers a statement for a
nonhearsay purpose, close attention should be paid to the
relevancy of, and need for, this use of the evidence." Blinka,
supra, § 802.302 at 828. The question is not whether the
13
The State further points to the fact that the jury heard
testimony about Hanson's confession to Kathy from multiple
witnesses which Hanson did not object to on appeal.
14
No. 2016AP2058-CR
evidence might be inadmissible hearsay if it is offered to prove
the truth of the matter asserted; rather, the question is
whether the evidence is offered for a legitimate reason other
than for the truth of the matter asserted. See United States
v. Friedman, 445 F.2d 1076, 1081 (9th Cir. 1971) (observing that
"[r]elevant testimony relating an out-of-court conversation is
admissible as evidence of consciousness of guilt, even though it
might be inadmissible hearsay if used to prove the truth of the
facts asserted"); see also United States v. Shorter, 54 F.3d
1248, 1260 (7th Cir. 1995); Zipf v. American Tel. and Tel. Co.,
799 F.2d 889, 895 (3d Cir. 1986); United States v. Hackett, 638
F.2d 1179, 1186-87 (9th Cir. 1980) (maintaining that the
defendant's statements "were admitted not for their truth, but
merely for the fact that the statements were made," which
implied the defendant's consciousness of guilt.).
¶26 A jury could infer that Hanson said that Kathy's death
was the best thing that ever happened to him because he had
heard from Detective Laskowski that she might be a witness
against him in McLean's murder. We accept the State's proffered
purpose for Detective Laskowski's statement and conclude that it
was not offered to prove the truth of the matter asserted. The
same rationale applies to the third layer, Kathy's statement to
Detective Laskowski, since whether Kathy actually told Detective
Laskowski that Hanson confessed to her is discrete from Hanson's
belief that she would testify against him. There is therefore a
legitimate nonhearsay purpose for the admission of Hanson's John
Doe testimony that is relevant to the charge against Hanson for
15
No. 2016AP2058-CR
McLean's murder: consciousness of guilt. "[W]hen the State
offers a statement for a proper nonhearsay purpose . . . it is
neither hearsay (evidence law) nor testimonial hearsay
(confrontation law)." Blinka, supra, § 802.302 at 828.
¶27 We conclude that Hanson's Sixth Amendment right to
confrontation was not violated because his John Doe testimony
was offered to demonstrate consciousness of guilt and was not
offered to prove the truth of the matter asserted. Because the
Confrontation Clause does not apply to nonhearsay statements,
Hanson's Sixth Amendment right to confrontation was not
violated.14
B. Hanson's ineffective assistance of counsel claim fails
because the law was unsettled as to whether Miranda warnings
were required at John Doe proceedings.
¶28 Hanson asserts that his trial counsel was deficient
for failing to object to the admission of his John Doe testimony
on the grounds that he was not read all of the Miranda warnings.
To establish that counsel's performance was deficient, the
defendant must show that the performance fell below "an
objective standard of reasonableness." See Thiel, 264
Wis. 2d 571, ¶19. In order to constitute deficient performance,
the law must be settled in the area in which trial counsel was
allegedly ineffective. See Breitzman, 378 Wis. 2d 431, ¶49
(quoted source omitted) ("'[F]ailure to raise arguments that
14
Because we decide the statement was not hearsay, we need
not decide whether the statement was testimonial, the next step
in an analysis under Crawford v. Washington, 541 U.S. 36 (2004).
16
No. 2016AP2058-CR
require the resolution of unsettled legal questions generally
does not render a lawyer's services outside the wide range of
professionally competent assistance sufficient to satisfy the
Sixth Amendment.'"). "'[I]neffective assistance of counsel
cases should be limited to situations where the law or duty is
clear such that reasonable counsel should know enough to raise
the issue.'" State v. Maloney, 2005 WI 74, ¶29, 281
Wis. 2d 595, 698 N.W.2d 583 (quoted source omitted).
¶29 In his brief, Hanson "acknowledges that there is no
binding authority requiring that all witnesses at a John Doe
hearing be read Miranda warnings before being questioned."
Hanson is correct that the law was unsettled. Accordingly,
trial counsel's failure to object to the introduction of
Hanson's John Doe testimony on the grounds that he was not read
all of the Miranda warnings at the John Doe proceeding cannot
constitute deficient performance. We conclude that because
Hanson is unable to succeed under the first prong of the
ineffective assistance of counsel analysis, deficient
performance, we need not consider the second prong, prejudice.
Breitzman, 378 Wis. 2d 431, ¶37. Therefore, Hanson's
ineffective assistance of counsel claim fails.
C. Miranda warnings are not required at John Doe proceedings.
¶30 Whether Miranda warnings are required at John Doe
proceedings is a matter of first impression. We begin our
analysis with the language and application of Miranda v.
Arizona, 384 U.S. 436 (1966). Under Miranda, any statement made
17
No. 2016AP2058-CR
by a person in custody in response to interrogation by law
enforcement officers must be suppressed if he or she has not
been properly informed of their rights. "Custodial
interrogation" set forth in Miranda, and reaffirmed in Oregon v.
Mathiason, 429 U.S. 492, 494 (1977), is defined as follows:
"questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." Therefore, if
questioning was not "initiated by law enforcement," or the
person was not "in custody," Miranda warnings are not required.
¶31 Because of the similarities between grand jury and
John Doe proceedings,15 case law analyzing Miranda's application
to grand jury proceedings is instructive. In United States v.
Mandujano, 425 U.S. 564, 566 (1976), a plurality of the United
States Supreme Court held that Miranda warnings are not required
for grand jury witnesses. The Mandujano Court explained that
Miranda "simply did not perceive judicial inquiries and
custodial interrogation as equivalents," as "the compulsion to
15
See Legislative Reference Bureau, Wisconsin Briefs 15-7:
Grand Jury and John Doe Proceedings in Wisconsin (Mar. 2015)
("Both grand jury and John Doe proceedings are independent
inquiries into whether a criminal complaint should be issued in
response to allegations of wrongdoing."). Nevertheless, it is
undisputed that John Doe proceedings "afford substantially more
protection to a potential accused than does a grand jury."
State v. Doe, 78 Wis. 2d 161, 165, 254 N.W.2d 210 (1977); see
also State v. Washington, 83 Wis. 2d 808, 819, 266 N.W.2d 597
(1978) (reasoning that a "John Doe is of a more restricted scope
than a grand jury, limited basically to the subject matter of
the complaint upon which the John Doe is commenced").
18
No. 2016AP2058-CR
speak in the isolated setting of the police station may well be
greater than in courts or other official investigations, where
there are often impartial observers to guard against
intimidation or trickery." Id. at 579 (quoting Miranda, 384
U.S. at 461.) The Court further emphasized that Miranda
addressed "extrajudicial confessions or admissions procured in a
hostile, unfamiliar environment which lacked procedural
safeguards," which is distinguishable from the grand jury
context. Mandujano, 425 U.S. at 579. Extending Miranda
warnings to a grand jury witness "is an extravagant expansion
never remotely contemplated by this Court in Miranda," according
to the Mandujano Court. Id. at 579-80.
¶32 In cases since Mandujano, the United States Supreme
Court has suggested that Miranda warnings are not required to be
read to grand jury witnesses prior to questioning. In United
States v. Washington, 431 U.S. 181, 186 (1977), the Court noted
that it had never held that Miranda applied to grand jury
proceedings.16 In Minnesota v. Murphy, 465 U.S. 420, 430, the
Court held that a defendant did not need to be read Miranda
warnings prior to speaking to his probation officer because he
"was not 'in custody' for purposes of receiving Miranda
protection." The Murphy Court repeatedly compared the
16
The Washington Court declined to resolve this issue
because the defendant was read Miranda warnings before
testifying at a grand jury proceeding. United States v.
Washington, 431 U.S. 181, 186 (1977).
19
No. 2016AP2058-CR
defendant's situation to a subpoenaed witness at a trial or
grand jury proceeding. Id. at 427, 431-32.
¶33 Relying on Mandujano, Washington, and Murphy, federal
courts of appeals have also concluded that Miranda warnings are
not required for grand jury witnesses. See, e.g., United States
v. Williston, 862 F.3d 1023, 1032 (10th Cir. 2017) (cert.
denied, 138 S. Ct. 436 (2017)); United States v. Myers, 123 F.3d
350, 360–62 (6th Cir. 1997); United States v. Gillespie, 974
F.2d 796, 802-05 (7th Cir. 1992) (reasoning that the United
States Supreme Court "has explicitly distinguished the custodial
nature of police interrogations from the grand jury context");
United States v. Pacheco-Ortiz, 889 F.2d 301, 307 (1st Cir.
1989); Conley v. United States, 708 F.2d 1455, 1458 (9th Cir.
1983); United States v. Prior, 546 F.2d 1254, 1257 (5th Cir.
1977). As the Tenth Circuit aptly explained: "a full-Miranda-
warning requirement would run counter to the Supreme Court's
direction that grand-jury witnesses are not in custody while
testifying, and that grand-jury questioning is not
interrogation." Williston, 862 F.3d at 1032.
¶34 As in grand jury proceedings, a witness at a John Doe
proceeding is not subject to custodial police interrogation. A
John Doe proceeding is convened by a judge for the purpose of
determining if a crime has been committed. See Wis. Stat.
§ 968.26(2)(b); see also State v. Washington, 83 Wis. 2d 808,
824, 266 N.W.2d 597 (1978) (emphasizing that a John Doe judge
must "conduct himself as a neutral and detached magistrate in
determining probable cause."). While a district attorney often
20
No. 2016AP2058-CR
questions John Doe witnesses, this court has long recognized
that the proceedings "are constantly under the scrutiny of a
judge," who "does not act as 'chief investigator' or as a mere
arm of the prosecutor." State ex rel. Two Unnamed Petitioners
v. Peterson, 2015 WI 85, ¶86, 363 Wis. 2d 1, 866 N.W.2d 165
(quoted source omitted) (emphasis in original). Along with the
statutory requirements of § 968.26, guidance for the John Doe
judge is also given in the Wisconsin Judicial Benchbook and
scripted material to address a witness is set forth in Special
Materials 12 of the Wisconsin Criminal Jury Instructions. See
Wis. Judicial Benchbook CR-48 (6th ed. 2019); Wis JI——Criminal
SM-12 (2011). 17
17
For example, Special Materials 12 recommends that a John
Doe judge address a witness using the following prompts:
"If you believe that a truthful answer to any
question asked of you would incriminate you, that is,
subject you to criminal prosecution, you may refuse to
answer the question on the grounds that it may
incriminate you. Do you understand that?"
"Do you understand that your answers to questions
put to you may be used against you by this John Doe or
in another legal proceeding?"
. . . .
"You are also advised that you have the right to
have an attorney present with you during your
testimony. . . ."
Wis JI——Criminal SM-12 (2011).
(continued)
21
No. 2016AP2058-CR
¶35 Moreover, even if a witness at a John Doe proceeding
is in custody relating to other charges at the time of the
proceeding, they would not be compelled to confess for "fear of
reprisal . . . or in the hope of more lenient treatment," as is
the fear with custodial police interrogation and a "police-
dominated atmosphere." See Illinois v. Perkins, 496 U.S. 292,
296-97 (1990). As the United States Supreme Court recently
clarified, "service of a term of imprisonment, without more, is
not enough to constitute Miranda custody," as "standard
conditions of confinement and associated restrictions on freedom
will not necessarily implicate the same interests that the Court
sought to protect when it afforded special safeguards to persons
subjected to custodial interrogation." Howes v. Fields, 565
U.S. 499, 512 (2012). A witness at a John Doe proceeding is not
subject to custodial interrogation and therefore Miranda
warnings are not required. Although we do not require Miranda
warnings be given at John Doe proceedings, we recommend a John
Doe judge address a witness in accordance with Special Materials
12.
The Wisconsin Judicial Benchbook also encourages the John
Doe judge to advise a witness on the record of their right
against self-incrimination, that their testimony may be used to
support issuance of a warrant, and that they have the right to
consult an attorney before answering questions. See Wis.
Judicial Benchbook CR-48 (6th ed. 2019).
We note that the John Doe judge here read the script set
forth in SM 12 almost verbatim.
22
No. 2016AP2058-CR
IV. CONCLUSION
¶36 We conclude that Hanson's Sixth Amendment right to
confrontation was not violated because his John Doe testimony
regarding Kathy's statement to police was not offered to prove
the truth of the matter asserted. We also conclude that
Hanson's ineffective assistance of counsel claim fails because
the law was unsettled as to whether Miranda warnings were
required at John Doe proceedings. Finally, we determine as a
matter of first impression that Miranda warnings are not
required at John Doe proceedings.
By the Court.—The decision of the court of appeals is
affirmed.
¶37 SHIRLEY S. ABRAHAMSON, J. withdrew from participation.
23
No. 2016AP2058-CR
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