Barrera v. Young

• Decision Date: 09 July 1986
• Docket Number: No. 85-2851,85-2851
• Parties: Reyes BARRERA, Jr., Petitioner-Appellant, v. Warren YOUNG, et al, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1264

794 F.2d 1264

Reyes BARRERA, Jr., Petitioner-Appellant, v. Warren YOUNG, et al, Respondents-Appellees.

No. 85-2851.

United States Court of Appeals, Seventh Circuit.

Submitted June 11, 1986.

Decided July 9, 1986.

Jack E. Shairer, Office of State Public Defender, Madison, Wis., for petitioner-appellant.

Michael R. Klos, Dept. of Justice, Madison, Wis., for respondents-appellees.

Before CUDAHY, POSNER and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982), holds that when a suspect consents to take a polygraph test and explicitly waives the rights established by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the prosecution may use as evidence any statements the suspect makes to the examiner after the test is over. Reyes Barrera, like Edward Fields, agreed to a polygraph test; Barrera, like Fields, waived his rights under Miranda and made some damaging admissions. But Barrera, unlike Fields, did not get the polygraph test he anticipated. Persuaded by Barrera's demeanor before the test that Barrera wanted to confess, the examiner never turned on the machine. Barrera eventually proved the examiner right. We must decide whether the prosecution may use the confession.

I

Barrera stands convicted of first-degree murder and armed robbery, for which he was sentenced to life plus 20 years. The evidence at trial allowed the jury to conclude that in October 1976 Barrera and Frederico Garcia drove from Michigan to Texas, robbing and killing those they met on the way. Barrera and Garcia picked up Barrera's brother Eduardo in Beaver Dam, Wisconsin. While in town they stole some liquor from the Park Avenue Liquor Store, a coat and some shotgun shells from a Shopko store. After test-firing their sawed-off shotgun, the trio returned to the liquor store. Barrera said he would rob the proprietor if she were alone. Garcia replied that she would see his face; he held up the shotgun and replied: "Well, what do you think I got this for?" Barrera emerged from the store with $90 and a spent shell; Janis Bussie, the proprietor, was dead. Later the trio robbed several gas stations. Barrera killed the attendant at one with the shotgun.

After being arrested Barrera maintained that Garcia had entered the liquor store and killed the proprietor. At trial, however, Barrera admitted doing the deed. His defense was that the shooting was accidental; his hand trembled, said he, because of withdrawal from heroin, and when Bussie reached for the gun it went off. Garcia contradicted this story, telling the jury that Barrera killed Bussie without provocation and had said that he killed the proprietor when she had the "nerve" to argue with him. Barrera conceded that he had told Garcia that he shot Bussie as she reached for the phone, but he said that this tale (like the tale to the police about Garcia doing the shooting) had been concocted. The truth, he insisted at trial, was that although he cocked the shotgun before entering the store, he did not mean to kill Bussie.

Robert Anderson, a polygraph examiner, told the jury that Barrera had confessed to killing Bussie without provocation. Anderson entered the picture when Barrera and his lawyer asked for a polygraph examination. Barrera and Garcia were blaming each other, and it was to Barrera's advantage to verify his own version of events. Anderson tested Barrera on March 7 and March 17, 1977. Each time Barrera was so anxious that the test did not produce reliable results. Anderson therefore suggested a third test, to which Barrera and his lawyer agreed. On April 4 Barrera confessed to Anderson before Anderson turned on the machine for this third test.

On each of the three occasions Anderson read Barrera the warnings prescribed by Miranda, and both Barrera and his lawyer signed written statements waiving the rights. The first two tests were administered at the State Crime Laboratory in Madison. Barrera's lawyer watched the tests through a one-way mirror, under an agreement with Anderson to stop the test if the lawyer tapped on the mirror. Each test was completed. On April 4 Anderson went to the Dodge County jail, where Barrera was being held. The jail did not have a room in which Barrera's lawyer could watch the test, but the lawyer was stationed outside the door, and Barrera testified that he knew he could stop the questioning and summon his lawyer at a moment's notice.

After Barrera and his lawyer heard the Miranda warnings--including the advice that anything Barrera said could be used against him--and signed the written waiver, Anderson may have told Barrera that the "results" of the test could not be used in evidence. "May have told" because although no one testified to such a reservation, Barrera's counsel stated in argument during a hearing that Anderson had given this advice. The remark would have been a reference to State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974), which held that unless prosecutor, defendant, and the defendant's lawyer sign a stipulation before the test begins, the results of the test (the graphs produced by the machine) and testimony explaining these results are not admissible at trial. (State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981), later held that polygraph evidence is not admissible even with a stipulation, but this has no bearing on our case.) Barrera did not sign a Stanislawski stipulation before any of the tests. But Wisconsin has wrestled with the extent to which testimony concerning statements before the machine is turned on (or after it is turned off) may be introduced into evidence. Both before and after Barrera's encounters with Anderson, the Supreme Court of Wisconsin held that statements sufficiently unrelated to the mechanical portion of the test may be used. State v. Schlise, 86 Wis.2d 26, 271 N.W.2d 619 (1978) (statements immediately after the test are inadmissible); Turner v. State, 76 Wis.2d 1, 250 N.W.2d 706 (1977) (statements six days after the test are admissible); McAdoo v. State, 65 Wis.2d 596, 223 N.W.2d 521 (1974) (statements immediately after the test are admissible if there is a clear break). The Supreme Court of Wisconsin held that Barrera's statements to Anderson on April 4 were admissible under Stanislawski because sufficiently unrelated to the making or interpretation of the polygraph machine's output. Barrera v. State, 99 Wis.2d 269, 282-89, 298 N.W.2d 820, 826-29 (1980), cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 (1981).

The answers were unrelated to the machine's output because Anderson never turned the machine on. Anderson began his customary pre-test interview. He testified that he always asks some questions about the crime with which the test will be concerned. This time Anderson showed Barrera the results of a polygraph test of Garcia and told Barrera that he interpreted these results as showing that Garcia had spoken the truth in saying that Barrera had fired the shot and told his companions that the murder was deliberate. According to Anderson, he then sensed that Barrera was about to confess, and he continued asking questions. Anderson had to sense this, because Barrera said nothing. Most of the interrogation, which lasted 45 minutes, was recorded. It is a monologue by Anderson. Apparently Barrera nodded and grunted in places, but he answered no questions until Anderson asked if he would confess if the tape were turned off. Barrera said he would. Anderson turned off the tape; Barrera broke down, cried, and confessed. Five minutes later Anderson turned the tape on again and dictated into the tape what Barrera had said. Then Barrera asked for his lawyer. Anderson stopped the questioning and let in the lawyer, who must have been startled to learn that Barrera had fessed up without being hooked up.

The trial court found that Barrera knew that his lawyer was available and demonstrated his ability to act on this knowledge by calling for the lawyer. The court found the confession voluntary. The Court of Appeals of Wisconsin reversed the conviction in an unpublished opinion, holding that the admission of Anderson's statements violated the rules established by Stanislawski and ensuing decisions. It did not discuss whether the statements were voluntary. The Supreme Court of Wisconsin found the statements admissible under Stanislawski and agreed with the trial court that they were voluntary. 99 Wis.2d at 289-93, 298 N.W.2d at 829-31. The court concluded that Barrera, who was 26 at the time, understood English well, was in good physical condition, and understood his rights well enough to exercise them to terminate the interview. This led the court to the conclusion that the statements were voluntary.

Justices Abrahamson and Heffernan dissented. 99 Wis.2d at 296-305, 298 N.W.2d at 832-37. They did not question the majority's conclusion that the confession was voluntary; instead, they concluded, Anderson had violated Barrera's right to counsel under the sixth amendment by questioning Barrera in a way counsel could not have anticipated. The questioning therefore was outside the scope of the waiver, the results inadmissible. The majority of the court did not discuss this possibility. In the district court, Barrera took both lines of argument; the district judge rejected both. The confession was voluntary, the court held, because Barrera, who knew what he was doing and recognized that he could stop the questioning in a trice, was not bamboozled or lied to. The interview did not infringe the right to counsel because Barrera's lawyer knew that Anderson would ask questions about the crime and had signed a waiver consenting to the use of the answers in court. Barrera renews both lines of argument on appeal.

II

The district court reached the merits of both claims, but it is not obvious that either has been preserved for full adjudication. Although Anderson's questioning of Barrera was recorded,...