State v. Agnello

Slip op. at 3-4

(Fine, J.,

concurring).

¶ 58. I agree with Judge Fine that Agnello's testimony was admissible to demonstrate Agnello's lack of credibility as a witness. It can be inferred from the context of the prosecutor's questions that they were designed to impeach Agnello by showing the inconsistencies between his direct examination statements and his cross examination statements.9 Immediately before the cross examination questions at issue, Agnello was asked during his direct examination why he had signed the confession. Agnello replied, "Because I was there for so long I was tired. They told me that I was never going [to] step foot on the outside again so I signed it and hoped everything would be over." Tr. at 90. Understandably, the prosecutor then attempted to impeach Agnello by eliciting testimony that would demonstrate that Agnello had other motives for signing his confession. When viewed in context, it is clear that the question asked by the prosecutor near the *199beginning of cross examination, "And you [signed the statement] because what is in the statement is true; is that correct," Tr. at 90, for example, was intended to get at why Agnello signed the confession, not whether the confession was true. Indeed, Agnello's answer reveals that he himself interpreted the question in this way; he answered, "No. Because I was extremely tired and scared." Tr. at 90.

¶ 59. Moreover, a circuit court may examine the manner in which a witness answers questions to resolve a witness's contradictory statements. See State v. Owens, 148 Wis. 2d 922, 930, 436 N.W.2d 869 (1989). There is no question that the circuit court viewed the exchange at issue as relevant to Agnello's credibility. See Tr. at 91.

¶ 60. The transcript of the Miranda-Goodchild hearing shows that the circuit court did not consider the confession's truthfulness in its voluntariness determination. Therefore, the circuit court did not violate the rule of Rogers and Jackson in determining that the confession was voluntary. See U.S. v. Kreczmer, 636 F.2d 108, 110-11 (5th Cir. 1981); Gilreath v. Mitchell, 705 F.2d 109, 110 (4th Cir. 1983). Although the court found Agnello's testimony to lack credibility, it is not true, as the majority contends, that the line of questioning at issue "played a sizable role in the circuit court's ruling," majority op. at 178, or that "the transcript reveals that the only times Agnello's memory could be categorized as selective were when the prosecutor sought information related to the truthfulness of his confession." Majority op. at 179. The circuit court based its judgment as to Agnello's credibility on several factors.10 The court never indicated the weight that it *200gave Agnello's "selective memory" in its credibility assessment, much less whether it "played a sizeable role" in that assessment. Arguably, the numerous differences between Agnello's testimony and the testimony of police detectives played the largest role in the circuit court's determination of credibility. Almost all of these discrepancies in testimony arose in portions of the hearing other than the questioning at issue.11

*201¶ 61. In sum, I would hold that Agnello's objection failed because it lacked the specificity and timeliness required by Wis. Stat. § 901.03(l)(1995-96). The context of this case did not create an environment where the grounds for the objection were obvious. In addition, the objection was a general objection and the testimony elicited was admissible for purposes other than the confession's truthfulness. Therefore, I conclude that Agnello's objection was insufficient to preserve the Rogers and Jackson issue for appeal.

I — I I — I 1 — 1

¶ 62. The majority concludes that this court should require the State to prove that a defendant's confession was voluntary by a preponderance of the evidence. See majority op. at 182. I disagree. I see no reason to depart from the long line of precedent establishing the rule that the State must prove voluntariness beyond a reasonable doubt.

¶ 63. First, contrary to the majority's view, Wisconsin has long used a reasonable doubt standard to determine voluntariness. In State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 264-65, 133 N.W.2d 753 (1965), this court announced that "[t]he state shall have the burden of proving voluntariness beyond a reasonable doubt." Following Goodchild, this court has consistently held that the State's burden in proving *202voluntariness is beyond a reasonable doubt.12 See, e.g., State v. Mitchell, 167 Wis. 2d 672, 696, 482 N.W.2d 364 (1992); Owens, 148 Wis. 2d at 933-34; Johnson v. State, 75 Wis. 2d 344, 352, 249 N.W.2d 593 (1977); Blaszke v. State, 69 Wis. 2d 81, 86, 230 N.W.2d 133 (1975); Norwood v. State, 74 Wis. 2d 343, 363, 246 N.W.2d 801 (1976); State v. Hernandez, 61 Wis. 2d 253, 258, 212 N.W.2d 118 (1973).

¶ 64. In order to remain faithful to the doctrine of stare decisis, this court should adhere to this long line of cases. Just last year, this court expounded on the importance of stare decisis, stating that application of the doctrine "is the preferred course." State v. Ferron, 219 Wis. 2d 481, 504, 579 N.W.2d 654 (1998) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). When established legal precedent "is open to revision in every case, 'deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.'" Citizens Utility Bd. v. Klauser, 194 Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, J., dissenting) (citation omitted). Consequently, this court has held that "any departure from the doctrine of stare decisis demands special justification." Ferron, 219 Wis. 2d at 504 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). The majority has failed to provide any "special justification" for its abandonment of the Wisconsin precedent in this area.

*203¶ 65. The fact that the United States Supreme Court has ruled that voluntariness need only be proved by a preponderance of the evidence, see Lego v. Twomey, 404 U.S. 477, 489 (1972), does not provide the "special justification" necessary for this court to cast aside Wisconsin's well-settled rule that voluntariness must be proved beyond a reasonable doubt. As the Court recognized in Lego, "Of course, the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake." Lego, 404 U.S. at 489. The United States Supreme Court specifically recognized that Wisconsin, in Goodchild, had already resolved the question differently. Id. at 479 n.1, 489 n.17. In Goodchild, this court carefully considered the appropriate procedure for voluntariness determinations in Wisconsin, taking the Wisconsin Constitution into account. See Goodchild, 27 Wis. 2d at 258-265. We adopted the "orthodox procedure," and in doing so, determined that the State must prove volun-tariness beyond a reasonable doubt. Id. at 264-65. This court may afford greater protection to a person's liberties under the Wisconsin Constitution than is afforded by the federal constitution and we have done so in the past. See State v. Hansford, 219 Wis. 2d 226, 241, 580 N.W.2d 171 (1998); Hoyer v. State, 180 Wis. 407, 415, 193 N.W.2d 89 (1923); Carpenter v. Dane County, 9 Wis. 249, 251 (1859). To the extent that the decision in Goodchild was based upon the Wisconsin Constitution, it is not affected by Lego, which was decided under the federal constitution. See Hansford, 219 Wis. 2d at 241.

¶ 66. Further, the majority offers no sound rationale as to why this court should forgo over thirty years of precedent merely to "align[ ] the burden in voluntariness determinations with the burdens of other pre-trial *204constitutional inquiries." Majority op. at 181. Although both the majority and the court of appeals cite several cases involving Miranda inquiries in which a preponderance of the evidence standard was applied, see majority op. at 181, slip op. at 8-9, it is well-settled law that a Miranda inquiry is entirely different from a voluntariness inquiry, even though a court may conduct both inquiries in the same hearing. See Roney v. State, 44 Wis. 2d 522, 534, 171 N.W.2d 400 (1969). As we stated in Roney, "A confession can be constitutionally antiseptic under Miranda in that it arises neither from interrogation nor custody, but can be involuntary because of coercive circumstances to which the police are not parties. Accordingly, the satisfaction of the Miranda rule does not ipso facto satisfy the question of voluntariness. . . ." Id. at 533. The Miranda rule is a prophylactic, judicially-created rule which '.'may be triggered even in the absence of a Fifth Amendment violation," Oregon v. Elstad, 470 U.S. 298, 306-07 (1983), while the requirement that a confession must be voluntary derives directly from the Fifth Amendment itself.13 As such, this court's holdings as to the burden of proof in one inquiry should not affect the other.14

*205¶ 67. ' In contrast, there is good reason, beyond adherence to the doctrine of stare decisis, for maintaining the higher burden of proof: often, the only strong evidence the State may have in a case is the defendant's confession. Without that evidence, the State most likely will not prosecute the case. Cases such as Rogers and Jackson protect a defendant from coercive tactics that might be used to secure a confession, by requiring that a court find that any confession that was obtained through impermissibly coercive tactics was an involuntary one and should be suppressed. Maintaining the burden at beyond a reasonable doubt holds the State to a higher level of accountability and scrutiny.

¶ 68. Accordingly, I conclude that this court should not lower the State's burden relating to volunta-riness determinations because it would overturn over thirty years of precedent and because sound public policy supports maintaining the beyond a reasonable doubt burden. Despite the burden adopted by the court of appeals, because the circuit court properly applied the beyond a reasonable doubt standard, I conclude that the court of appeals' determination that Agnello's statement was a voluntary one should be affirmed.

*206>

¶ 69. Finally, I conclude that Agnello, at the Miranda-Goodchild hearing, adequately raised the issue of whether police tactics other than sleep deprivation impaired the voluntariness of his confession. Applying the appropriate standard of review, I would uphold the circuit court's determination that Agnello's statement was voluntary beyond a reasonable doubt.

¶ 70. Agnello argued on appeal that the police used improper tactics in questioning him, including: (1) handcuffing Agnello to the interrogation room wall; (2) lengthy questioning; (3) isolation; (4) sleep deprivation; and (5) food deprivation. Slip op. at 10-11. The court of appeals refused to consider any of these alleged tactics except sleep deprivation, holding that Agnello waived his right to raise the other tactics by failing to raise them at the circuit court level. I disagree.

¶ 71. During his Miranda-Goodchild hearing, Agnello made offers of proof regarding all of the allegedly coercive police tactics which he raises on appeal.15 Moreover, during his closing argument, counsel for Agnello argued that "I think the totality of the circumstances here also show that the confession itself was simply coercive circumstances." Tr. at 162 (emphasis added). While counsel for Agnello highlighted sleep deprivation as arguably the most egregious offense,16 *207he also preserved his right to raise on appeal other tactics used by specifying that the totality of the circumstances resulted in coercion.

¶ 72. Next, I consider whether the circuit court properly found that Agnello's confession was voluntary. In determining whether a confession was voluntary a court must look at the totality of the circumstances in order to determine whether the defendant was 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." State v. Clappes, 136 Wis. 2d 222, 236, 401 N.W.2d 759 (1987) (quoting State v. Hoyt, 21 Wis. 2d 284, 308, 128 N.W.2d 645 (1964)). The court must balance the defendant's personal characteristics against the tactics employed by the police in procuring the confession. Id. However, "in order to justify a finding of involuntariness, there must be some affirmative evidence of improper police practices deliberately used to procure a confession." Id. at 239. If there is no such affirmative evidence, the analysis ends; the confession is voluntary. Id. at 239-40, 245.

¶ 73. This court will not set aside the circuit court's findings of evidentiary or historical fact unless we determine that they are contrary to the great weight and clear preponderance of the evidence. Id. at 235. See also Norwood, 74 Wis. 2d at 363-64. Consequently, any conflicts in the testimony regarding the circumstances surrounding the confession must be resolved in favor of the circuit court's findings. Norwood, 74 Wis. 2d at 364; Clappes, 136 Wis. 2d at 235. We review independently the application of constitutional principles to the circuit court's findings of fact. Clappes, 136 Wis. 2d at 235.

*208¶ 74. In this case, the circuit court found "beyond a reasonable doubt under all of the circumstances" that Agnello's confession "was not coerced in any sense of the word." Tr. at 171. The court made a specific finding that the number of hours that Agnello was awake did not "constitute such undue fatigue as to render the statement involuntary." Tr. at 170-171. In addition, the court declined to accept as true Agnello's assertion that the police put pressure on his hand during questioning. Id. at 171. The court found the police officers' testimony more credible in general and also accepted the police detectives' version of events "over Mr. Agnello's version in this case under all the facts and circumstances that were elicited here." Id. at 169, 171. None of the police detectives testified to circumstances which even remotely could be characterized as coercive. Based on my review of the transcript, I conclude that these findings of the circuit court are supported by the great weight and clear preponderance of the evidence.

¶ 75. Because the circuit court properly found that no coercion existed, there is no need to balance Agnello's personal characteristics against the police tactics used. See Clappes, 136 Wis. 2d at 236, 239-40, 245. The circuit court correctly determined that under the totality of the circumstances, Agnello's confession was voluntary.17

¶ 76. To summarize, I conclude that Agnello waived his right to review of whether the prosecutor's line of questioning at the Miranda-Goodchild hearing violated his due process rights under the rule of Rogers and Jackson. Based on well-established Wisconsin pre*209cedent, I am convinced that the State must prove the voluntariness of a confession beyond a reasonable doubt. Further, I conclude that Agnello preserved his right to raise on appeal any police practices used during his questioning by specifying that the totality of the circumstances resulted in coercion. Finally, I find that the circuit court properly determined that Agnello's confession was voluntary. Accordingly, I would affirm the court of appeals.

¶ 77. For all of these reasons, I respectfully dissent.

¶ 78. I am authorized to state that Justice DONALD W. STEINMETZ and Justice JON P. WILCOX join this dissent.

See Wis. Stat. § 906.11(2), which provides in part, "A witness may be cross-examined on any matter relevant to any issue in the case, including credibility."

The circuit court stated:

*200[I]n my judgment the police officer and detective witnesses in this case outweigh in the credibility contest. Mr. Agnello had very little credibility when he testified on his own behalf as evidenced by the manner in which he testified. As evidenced by his very selective memory in this case and also as evidenced by his past criminal history which is in the record through the statement which is in the record here itself which casts some doubt on his own credibility. And also his credibility with respect to his position that he did in fact request a lawyer is contradicted by the fact that he signed a waiver and that he gave a statement and signed the statement at various points.

Tr. at 169-70. The court also stated that it didn't "buy" Agnello's testimony that Detective Olson put pressure on his hands during questioning because Olson had testified otherwise. Id. at 171.

Four examples illustrate the pervasiveness in the record of discrepancies between Agnello's testimony and that of the detectives. First, Agnello testified that Detectives Burems and Moore came into the interrogation room about three to five minutes after he got there and questioned him all night, but Moore testified that the questioning began at 6:00 a.m. and lasted until 8:20 a.m., and that before that, Agnello was in the interview room alone and had the opportunity to sleep. See Tr. at 81-82, 151-53, 155. Second, Agnello testified that none of the detectives informed him of his Miranda rights, whereas Detectives Moore and Temp both testified that Agnello had received his rights and Temp indicated that Agnello had signed a written waiver (later admitted into evidence). See Tr. at 6, 8, 83, 86, 152. Third, Agnello claimed that Detective Olson grabbed or pressed on his hands several times during questioning, but both Olson *201and Temp testified that neither of them had ever touched Agnello's hands. See Tr. at 89, 144, 148-49. Finally, Agnello testified that he had requested a lawyer several times and had either been ignored or denied a lawyer by all detectives, while Moore, Temp, and Olson all testified that Agnello never once asked for an attorney. See Tr. at 20, 83-84, 86, 94-95, 148-49, 153.

As the majority recognizes, State v. Albrecht, 184 Wis. 2d 287, 301, 516 N.W.2d 776 (Ct. App. 1994), misstated the law at the time when it held that the State must prove voluntariness by a preponderance of the evidence. See majority op. at 180 n. 11. Albrecht incorrectly relied on State v. Rewolinski, 159 Wis. 2d 1, 16 n.7, 464 N.W.2d 401 (1990), a case which set forth a preponderance standard as the burden of proof in a Fourth Amendment search and seizure suppression hearing.

The Fifth Amendment provides: "No person. . .shall be compelled in any criminal case to be a witness against himself." The Fourteenth Amendment requires states to recognize the Fifth Amendment privilege against self-incrimination. Malloy v. Hogan, 378 U.S. 1, 3 (1978). Article I, section 8 of the Wisconsin Constitution also prohibits compelled self-incrimination.

Recently, this court held that the State must bear the burden of proof on the issue of "custodial interrogation" in a Miranda inquiry. See State v. Armstrong, 223 Wis. 2d 331, 347 (1999). We based our holding in part on the fact that the burden in voluntariness determinations is on the State. See id. at *205346-47. Allocation of the burden of proof presents a very different issue than determining the substantive standard of proof, however. Also, this court had never decided previously to Armstrong which party bore the burden of establishing the occurrence of a "custodial interrogation." Id. at 345. In contrast, there is a line of cases stretching back over thirty years holding that the State must prove voluntariness beyond a reasonable doubt.

Agnello testified that he was placed in an interrogation room and occasionally was handcuffed to its wall, that a detective grabbed his hand during questioning, that he was subjected to long periods of questioning, that he was threatened by police, that he received a hamburger, and that he was tired. See Tr. at 81-90.

Counsel for Agnello also specifically argued that the fact that police had "gone on so long with their questioning" contributed to the coercive circumstances. Id.

I again note that the court of appeals also upheld the circuit court's determination that Agnello's confession was voluntary. See slip op. at 12.