State v. Lemoine

SHIRLEY S. ABRAHAMSON, C.J.

¶ 38. (<dissenting). This case calls upon the court to address two issues: (1) whether the defendant's confession was voluntary; and (2) whether the court of appeals erred by not conducting a Harrison!Anson analysis. I write separately to address both issues.

I

¶ 39. The majority has correctly stated the legal principles governing the determination of the voluntariness of confessions. Voluntariness is evaluated on a case-by-case basis by analyzing the totality of the circumstances. Both the circuit court and court of appeals concluded that this case presents a close call on the issue of voluntariness. I agree it is close but, in my opinion, this defendant's confession was involuntary.

*195¶ 40. I watched the video of the interrogation. This is a close case because the video is, on its surface, reassuring that the interrogation was conducted in a polite, solicitous and non-threatening manner. Yet, the interrogation techniques using deception and promises came right out of the guidebooks on how to interrogate a suspect to induce a confession. The interrogation techniques used here have not been condemned out of hand by the United States Supreme Court, but they have to be carefully examined in each case. Tipping the scale for me here is that in addition to the deceptive interrogation techniques and the defendant's personal vulnerabilities, the law enforcement officers misinformed the defendant of his constitutional right to call an attorney. In considering the totality of circumstances, the misinformation about the defendant's constitutional rights pushes this case over the line for me.1

¶ 41. I recognize that "no confession following interrogation is completely voluntary in the psychological sense of the word."2 In determining voluntariness, a *196court applies legal principles, not psychological or philosophical principles.

¶ 42. Under the law, a confession is not voluntary when the pressures imposed by law enforcement exceed the suspect's ability to resist.3

¶ 43. Confessions are the product of the situational pressures inherent in the conditions of interrogation, including excessively long questioning, the presentation of false incriminating evidence, and the use of themes that imply leniency.4 The interrogation techniques aim to break down the suspect's will until he provides the police with the information they are looking for.

¶ 44. Confessions are also the product of the personal vulnerabilities of the suspect. The court must therefore consider such factors as the suspect's age; education; intelligence; physical, mental and emotional condition; personality traits; and previous experience with law enforcement.5

¶ 45. The single-minded purpose of interrogating the defendant in the present case was to elicit an incriminating statement and perhaps a full confession to assist the district attorney in securing a conviction. The Sauk County Sheriffs Department was not investigating a crime for which it did not have a suspect or a viable lead. Detective McClure had received a report from the victim's mother and a statement from the *197victim that the defendant had committed a sexual assault. The only thing left to do was to get a confession from the defendant.

¶ 46. The interrogation was conducted in a subtle, quiet, and non-threatening way. During the entire interrogation, law enforcement officers were polite and solicitous of the defendant. They posed as the defendant's friends, there to help the defendant. The techniques used were right out of the books on how to interrogate a suspect to induce a confession. They were interrogation techniques recommended to break down a suspect's natural inclination to deny wrongdoing.

¶ 47. The defendant here was interviewed in a small, windowless room, with no distractions, designed to induce stress and structured to promote a sense of isolation and create a sense of anxiety, despair, and a desire to escape.6

¶ 48. For the first half of the interrogation, which went on for nearly an hour and a half, the defendant denied inappropriately touching the victim. Only after the Lieutenant offered deceptive misinformation about evidence against the defendant, made promises to the defendant, and misinformed the defendant of his constitutional right to counsel, did the defendant confess to the crime.

¶ 49. The Lieutenant used the false evidence ploy, by which interrogators bolster an accusation by presenting the suspect with supposedly incontrovertible evidence of his guilt.7

*198¶ 50. The Lieutenant made multiple assertions regarding the victim's physical exam; no assertions were based in fact. The Lieutenant told the defendant that the victim went through "very lengthy medical procedures" and that they had some "pretty solid evidence." The Lieutenant asked the defendant for a DNA swab, implying there was some sort of DNA evidence. When that did not work, the Lieutenant stated that the victim was getting "specialized testing," and that they had enough with the "tests and testimonies" for probable cause and he and the district attorney were confident the allegations were true.

¶ 51. In reality, the physical exam performed on the victim found no evidence of a sexual assault.

¶ 52. The Lieutenant told the defendant that the only way he could be helped was to "come clean." The Lieutenant explained that the harder police have to work, the less sympathy they would have for the defendant. The Lieutenant told the defendant that he did not believe his story and that, if the defendant would "come clean," the officers could help him out "by not making a big production in the [newspaper]." Majority op., ¶ 8.

¶ 53. Making threats or promises during an interrogation that address the consequences about which the suspect is concerned is very influential in breaking a suspect's will and straddles the line of permissibility.8

¶ 54. The defendant was very concerned about losing his job; about spending a night in jail; about ending up in court; and about having his conduct publicized in the community.

¶ 55. The Lieutenant played to all of the defendant's concerns.

*199¶ 56. The Lieutenant assured the defendant that if he admitted to the allegations, which were a felony, the felony conviction would not prevent him from keeping his job driving a truck. Majority op., ¶ 8.

¶ 57. The Lieutenant described three scenarios to the defendant: "We can arrest you and put you in jail, and you will go to court tomorrow. We can give you a citation and send you down the road. Or we can do nothing and wait until we get everything." The defendant requested the citation. The Lieutenant replied: "No, I'm not going to give you the choice." Majority op., ¶ 9.

¶ 58. The Lieutenant told the defendant: "If we get the true story on you today, I'll see to it that you don't spend the night in jail, okay?" The defendant's response to the Lieutenant was: "Just don't take me to jail, and I'll admit to it."

¶ 59. The Lieutenant kept his promise to keep the defendant out of jail for the night. He also encouraged the defendant to talk with the district attorney so that "it doesn't end up in court" or "in the public forum." Majority op., ¶ 10.

¶ 60. The Lieutenant advised the defendant that if he confessed, he would be able to consult with an attorney as follows:

And it will give you time to call an attorney and get your ducks in a row; all right? Otherwise, you know, we can lock you up, if we choose to do so. Which kind of limits your ability of what you can get.

¶ 61. When the defendant asked what he meant, the Lieutenant replied: "Well, you're not going to be able to make any phone calls or anything."

¶ 62. The Lieutenant was not fully truthful in advising the defendant about his inability to call or *200speak to an attorney unless the defendant confessed. Indeed the Lieutenant's advice contravened the Miranda warnings: an accused has the right to remain silent and the right to have a lawyer present.

¶ 63. The defendant was 22 years of age with limited experience with law enforcement. He was at an age susceptible to police coercion.9 The defendant appeared very naive in the video and not at all aware of or suspicious of the law enforcement officer's motives or tactics.

¶ 64. The court summarized the factors a court should consider in determining whether a confession was voluntary in State v. Clappes, 136 Wis. 2d 222, 235-37, 401 N.W.2d 759 (1987), as follows:

In determining whether a confession was voluntarily made, the essential inquiry is whether the confession was procured via coercive means or whether it was the product of improper pressures exercised by the police. The presence or absence of actual coercion or improper police practices is the focus of the inquiry because it is determinative on the issue of whether the inculpatory *201statement was the product of a "free and unconstrained will, reflecting deliberateness of choice."
In examining whether a confession was rationally and deliberately made, it is important to determine that the defendant was not the "victim of a conspicuously unequal confrontation in which the pressures brought to bear on him by representatives of the state exceed[ed] the defendant's ability to resist." This determination is made, in turn, by examining the totality of the facts and circumstances surrounding the confession. The ultimate determination of whether a confession is voluntary under the totality of the circumstances standard requires the court to balance the personal characteristics of the defendant against the pressures imposed upon him by police in order to induce him to respond to the questioning.
The relevant personal characteristics of the confessor include his age, his education and intelligence, his physical and emotional condition, and his prior experience with the police. These factors must be balanced against the police pressures and tactics which have been used to induce the admission, such as the length of the interrogation, any delay in arraignment, the general conditions under which the confessions took place, any excessive physical or psychological pressure brought to bear on the declarant, any inducements, threats, methods or strategies utilized by the police to compel a response, and whether the individual was informed of his right to counsel and right against self-incrimination. (Emphasis added; internal citations omitted.)

¶ 65. I have considered the factors set forth in Clappes. The combination of the defendant's personal characteristics, the deceptive tactics, and the misinformation about the defendant's constitutional right to an attorney crosses the line between a voluntary and an involuntary confession for me. In my opinion, the *202pressures exceeded the defendant's ability to resist. It's a close case, but in my opinion, this defendant's confession was involuntary.

II

¶ 66. I also write separately here to call attention to the second issue raised by the parties. This second issue is, in my opinion, the reason the court granted the petition for review of the case, namely the Harrison10/Anson11 analysis. The court of appeals failed to discuss these cases. It assumed the confession was involuntary and went directly to a discussion of harmless error. When the defendant moved the court of appeals to reconsider its decision for failure to conduct a Harrison!Anson analysis, the court of appeals denied the motion. The court of appeals responded:

[W]e have already addressed and rejected Lemoine's Harrison argument by holding that any error was harmless.

¶ 67. The parties dispute various issues arising in a Harrison/Anson analysis, including:

• Does an appellate court have the authority to make a Harrison determination?
• How does a Harrison!Anson analysis comport with a harmless error analysis?
« May a reviewing court avoid determining whether the defendant's testimony was impelled by the admission of his police statement at trial and just determine whether the error was harmless?
*203• After a reviewing court has determined that the defendant's statements were not made voluntarily, may the court rely on the defendant's trial testimony to determine that any error admitting the confession was harmless?
• Is a Harrison determination based on a paper review of the record or is an evidentiary hearing in the circuit court required or allowed?
• If a Harrison determination is made by the circuit court, does the circuit court make findings about the credibility or plausibility of a witness's testimony at trial?
• If a Harrison determination is made by the circuit court, does the circuit court have to address the importance of the erroneously admitted evidence, along with the properly admitted evidence?
• Has the State carried its burden of proving beyond a reasonable doubt that the defendant's testimony at trial in the present case was not impelled by the admission at trial of his statement to police?
• If the defendant's testimony was impelled, is the error prejudicial per se?12

*204¶ 68. Because the majority concludes that the confession was voluntary, it decides that it need not and does not address any Harrison/Anson issues.13 Nevertheless, this court has often decided an important issue that is not determinative but is fully briefed and argued and is likely to arise again in other cases.14 Unfortunately, these Harrison/Anson issues await another case.

¶ 69. For the reasons set forth, I write separately in dissent.

No one claims that the law enforcement officers were required to give the defendant Miranda warnings. The court has, however, emphasized the importance of the Miranda warnings and the constitutional rights the Miranda decision protects.

1 conclude that law enforcement officers who do not have to give the Miranda warnings err in giving a suspect misinformation about his or her constitutional rights regarding counsel. See State v. Knapp, 2003 WI 121, ¶¶ 46, 73, 265 Wis. 2d 278, 666 N.W.2d 881 (an officer's intentional omission of Miranda warnings to get information from a suspect entitled the suspect to have physical evidence against him suppressed at trial when he gave incriminating statements before being advised of his Miranda rights).

Fred E. Inbau et al., Criminal Interrogation and Confessions 417 (4th ed. 2004).

See majority op., ¶ 3; Knapp, 265 Wis. 2d 278, ¶ 89 (citing State v. Clappes, 136 Wis. 2d 222, 235-36, 401 N.W.2d 759 (1987)).

Jennifer T. Perillo & Saul M. Kassin, Inside Interrogation: The Lie, The Bluff, and False Confessions, 35 Law & Hum. Behav. 327 (2011).

State v. Clappes, 136 Wis. 2d 222, 235-37, 401 N.W.2d 759 (1987); see also Inbau et al., supra note 2, at 417.

Inbau et al., supra note 2, ch. 5; Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 6-7 (2010).

Perillo & Kassin, supra note 4.

Inbau et al., supra note 2, at 418.

There is no claim in the present case that the defendant made a false confession. Still, false confessions can occur in both voluntary and involuntary confessions.

Nearly one quarter of those exonerated through DNA in the United States were wrongfully convicted after giving what turned out to be a false confession. See Perillo & Kassin, supra note 4.

Young suspects are more likely to give a false confession. In a recent study analyzing 125 false confessions in the United States between 1971 and 2002, the largest sample ever studied, 63% of false confessions were made by suspects under the age of 25. Thirty-two percent of the suspects were under 18, meaning that 31% of the total persons falsely confessing were between 18 and 25. See Kassin et al., supra note 6, at 5.

Harrison v. United States, 392 U.S. 219 (1968).

State v. Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776.

Compare Harrison, 392 U.S. at 226 ("It has not been demonstrated, therefore, that the petitioner's testimony was obtained 'by means sufficiently distinguishable' from the underlying illegality 'to be purged of the primary taint.' Accordingly, the judgment must be reversed.") (internal citation omitted); and Anson, 282 Wis. 2d 629, ¶ 56 ("We hold that the State has not demonstrated that 'the petitioner's testimony was obtained 'by means sufficiently distinguishable' from the underlying illegality 'to be purged of the primary taint.' As such, we hold that Anson's testimony was impelled by the State's underlying constitutional violation. Thus, we hold that the circuit court's error in failing to suppress Anson's tape-recorded statement, which violated his Sixth Amendment rights, was not harmless. Therefore, we affirm the decision of the court of appeals and remand for a new trial.") (internal citations omitted).

*204The United States Supreme Court has directed a reviewing court to use extreme caution before determining that admission of an involuntary confession was harmless. Arizona v. Fulminante, 499 U.S. 279, 296 (1991).

For a discussion of Harrison, see 3 Wayne R. LaFave et al., Criminal Procedure §§ 9.5(d), 10.2(c) (3d ed. 2007).

See, e.g., Les Moise, Inc. v. Rossignol Ski Co., Inc., 122 Wis. 2d 51, 54 361 N.W.2d 653 (1985) (We chose to decide the issues presented for review because the issue was likely to recur and we disagreed with the decision of the court of appeals, even though our opinion would not affect the parties directly.); State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 229-230, 340 N.W.2d 460 (1983):

[T]his court has held that it will retain a matter for determination although that determination can have no practical effect on the immediate parties: Where the issues are of great public importance; .. . where the precise situation under consideration arises so frequently that a definitive decision is essential to guide the trial courts; where the issue is likely to arise again and should be resolved by the court to avoid uncertainty ....
This court has a law-declaring function, that is, determining on common-law principles what the law should be in view of the statutory and decisional law of the state and in view of the general trend of the law.... It is not inappropriate for this court, where a problem is likely to recur, to declare the law for the guidance of other courts, even-though the particular controversy is moot (internal citations omitted).