State v. Hoppe

DIANE S. SYKES, J.

¶ 61. (dissenting). It is well-*317established that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986). A confession will not be suppressed as involuntary unless there is an "essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other." Id., 497 U.S. at 165.

¶ 62. To determine whether a confession is voluntary within the meaning of the due process clause, 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." State v. Clappes, 136 Wis. 2d 222, 235-36, 401 N.W.2d 759 (1987). "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 statement was the product of a 'free and unconstrained will, reflecting deliberateness of choice.'" Id. (quoting Norwood v. State, 74 Wis. 2d 343, 364, 246 N.W.2d 801 (1976)).

¶ 63. Voluntariness is determined by an examination of the "totality of the circumstances," which in turn "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." Clappes, 136 Wis. 2d at 236. Nevertheless, in the absence of coercive or otherwise improper police conduct, and a link between that conduct and the confession, a court cannot conclude that a confession is involuntary within the meaning of the due process clause. Connelly, 479 U.S. at 165; Clappes, 136 Wis. 2d at 240. "Therefore, because there is no support for the proposition in Wisconsin that the amount of *318pressure or coerciveness required can decrease to none, a defendant's personal characteristics, while certainly relevant to our analysis, are simply not dispositive of the issue of voluntariness." Clappes, 136 Wis. 2d at 240.

¶ 64. There is no evidence of coercion or improper police conduct in this case. The majority's conclusion that Hoppe's statements were involuntary turns entirely on the evidence regarding Hoppe's personal characteristics, in particular, his impaired mental and physical condition brought on by alcohol withdrawal. The majority concludes that Hoppe's compromised mental and physical condition renders the otherwise non-coercive and completely proper police conduct in this case coercive and improper, making Hoppe's statements unconstitutionally involuntary. Majority op., ¶¶ 59-60. I cannot agree.

¶ 65. The majority states that "[w]hen the allegedly coercive police conduct includes subtle forms of psychological persuasion, the mental condition of the defendant becomes a more significant factor in the 'voluntariness' calculus," Majority op., ¶ 40 (citing Connelly, 479 U.S. at 164). The majority has taken this statement from Connelly out of context, as the sentences on either side of the cited statement make clear. The entire passage from Connelly is as follows:

Thus, the cases considered by this Court over the 50 years since Brown v. Mississippi [the Supreme Court's seminal confession case] have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal *319defendant of due process of law. Respondent correctly notes that as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the "voluntariness" calculus. But this fact does not justify a conclusion that a defendant's mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional "voluntariness."

Connelly, 479 U.S. at 163-64 (internal citations omitted).

¶ 66. The majority overstates Connelly's holding so as to support the conclusion that Hoppe's statements were constitutionally involuntary. In so doing, the majority has allowed the personal characteristics of the defendant — here, mental and physical vulnerability associated with alcohol withdrawal — to overcome the absence of any police coercion or improper conduct for purposes of determining voluntariness.

¶ 67. Connelly did not hold that a defendant's compromised or vulnerable mental condition can render non-coercive and proper police conduct coercive and improper, as the majority asserts. Majority op., ¶ 43. At best, Connelly suggests that a defendant's mental condition may become "a more significant factor" depending upon the presence of "more subtle forms of psychological persuasion." Connelly, 479 U.S. at 164. The Supreme Court in Connelly reiterated unequivocally that constitutional involuntariness requires "a substantial element of coercive police conduct." Id.

¶ 68. Our own confession case, Clappes (which cited and discussed Connelly), reinforces this requirement: "in order to justify a finding of involuntariness, there must be some affirmative evidence of improper *320police practices deliberately used to procure a confession." Clappes, 136 Wis. 2d at 239.

¶ 69. There is no evidence of coercive or improper police conduct here. The three police interviews with the defendant were spread out over three days, and none was inordinately long. There were no threats or promises, no force was used, no intimidation of any kind was applied, there were no harsh words or tone of voice, no withholding of food or water, and the circuit court found that the officer was "uncommonly helpful" to Hoppe during the interviews. The circuit court found that the officer's questioning in the third interview did become more accusatory in nature, and it involved an increase in "psychological pressure" in that the officer referred to emotional topics such as the death of Hoppe's parents, concern about the victim's family, and Hoppe's service in Vietnam. The circuit court also noted that there were no Miranda warnings given, which, although not required, is relevant to the issue of volun-tariness. The evidence also clearly establishes that Hoppe's physical and mental condition was compromised by severe alcohol withdrawal.

¶ 70. Considered in its totality, and applying a de novo standard of review to the constitutional voluntariness issue, see Clappes, 136 Wis. 2d at 235, I conclude that the police conduct in this case was not coercive or improper so as to render Hoppe's statements constitutionally involuntary. The evidence that the officer's questions in the third interview were more accusatory than inquisitive, and the evidence that the officer referred to the death of Hoppe's parents, the concerns of the victim's family, and Hoppe's service in Vietnam, simply does not support a conclusion that the police coerced or improperly induced Hoppe's statements, even when considered in the context of Hoppe's corn-*321promised physical and mental condition and the absence of Miranda warnings.

¶ 71. Given this absence of any evidence of police coercion or improper conduct, the State met its burden of proving, by a preponderance of the evidence, see State v. Agnello, 226 Wis. 2d 164, 182, 593 N.W.2d 427 (1999), that the statements were voluntary and therefore admissible. I would reverse the court of appeals and the circuit court.

¶ 72. I am authorized to state that Justice DAVID T. PROSSER, JR. joins this dissent.