Jennifer J. v. State, 94-2735
| Decision Date | 24 August 1995 |
| Docket Number | No. 94-2735,94-2735 |
| Citation | 539 N.W.2d 336,196 Wis.2d 646 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Interest of JENNIFER A.J., a child under the age of 18: Jennifer A.J., Appellant, v. STATE of Wisconsin, Respondent. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., and SUNDBY and VERGERONT, JJ.
Jennifer A.J., a minor, appeals from a dispositional order transferring her legal custody to the Wisconsin Department of Health and Social Services, Division of Youth Services until she reaches the age of twenty-one. 1 The order was based on Jennifer's entry of an Alford plea to one count of attempted firstdegree intentional homicide, contrary to §§ 940.01(1) and 939.32, Stats., and no contest pleas to one count of physical abuse of a child, contrary to § 948.03(2)(a), Stats., and one count of carrying a concealed weapon, contrary to § 941.23, Stats., in a delinquency petition. Jennifer raises two issues on appeal. First, whether the trial court erred in refusing to suppress inculpatory statements she made to law enforcement officers while in custody. We conclude the trial court properly refused to suppress the statements. Second, whether the trial court erroneously exercised its discretion at the disposition stage. We conclude it did not. Accordingly, we affirm.
The pertinent facts are not disputed. Jennifer was arrested and taken into custody by a deputy from the Dane County Sheriff's Department at approximately 2:00 a.m. on October 10, 1993, as a suspect in an attempted homicide. A fifteen-year-old boy had been shot with Jennifer's father's handgun at approximately 1:15 a.m. outside of Jennifer's residence. Jennifer was fifteen years old and in the ninth grade at the time of the arrest. She was taken to a conference room in the Dane County Sheriff's Department and seated at a table. Prior to any questioning, one of the detectives present read Jennifer her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9 (1966). After indicating that she understood her rights, Jennifer stated that she was willing to talk about what happened. The interrogation concluded at approximately 7:30 a.m. During the interrogation, Jennifer confessed to the shooting.
A delinquency petition was filed against Jennifer alleging counts of attempted first-degree intentional homicide, physical abuse of a child, and carrying a concealed weapon. Jennifer denied the charges and entered a plea of not responsible by reason of mental disease or defect. She then filed a motion to suppress the statements she made to the detectives during the interrogation. In the motion, Jennifer contended that her waiver of Miranda rights was not knowing and intelligent.
At the suppression hearing, the detectives involved in the interrogation testified that Jennifer was read her Miranda rights at approximately 3:00 a.m. These rights were read slowly, taking two minutes to read through. After each right was read, Jennifer replied that she understood that right. The detectives testified that while Jennifer's Miranda rights were being read, Jennifer maintained eye contact and, on a couple of occasions, nodded her head. At no time did Jennifer turn away, fidget or stare off in any other direction. Jennifer did not indicate that she was tired, and stated that she did not want to see her parents. At the completion of the Miranda warnings, Jennifer indicated that she was willing to make a statement. The detectives testified that there were no visible signs that Jennifer was not understanding any verbal communications made to her.
A psychologist called by Jennifer, William Merrick, testified that he had examined Jennifer and concluded that Jennifer has a learning disability, referred to as an auditory deficit disorder, which causes her to have difficulty understanding what is being said to her. According to Merrick, Jennifer has "very moderate to severe difficulties in anything having to do with language processing." Merrick testified that Jennifer's verbal I.Q. is 74, which, according to Merrick, is "borderline retarded"; her nonverbal I.Q. is 108, which is in the upper end of normal. Merrick stated that the significance of this low verbal I.Q. is that Jennifer has a "real tough time" with manipulation of language.
When asked whether he had an opinion to a reasonable professional probability as to whether Jennifer was capable of understanding her Miranda rights, assuming that the rights were read at 3:00 a.m., that the Miranda-rights card used by the detective was written at an eighth-grade reading level, that Jennifer's emotional state was flat-lined, sullen and reserved, that there were no distractions in the room, that Jennifer maintained eye contact with the detective and did not appear to be distracted, that the questions were read one at a time, that Jennifer replied that she understood each right, and that the whole process took two minutes, Merrick replied:
She could have a very limited understanding of these rights as read to her. And I'm not sure that she didn't read them herself....
And at worse [sic], if she were emotional, inattentive, and so on, that she would have a very difficult, if not impossible, time in understanding or appreciating them.
Merrick also testified that Jennifer would not be able to understand or appreciate the meaning of the question on the Miranda-rights card that asks: "Realizing that you have these rights, are you now willing to answer questions or make a statement?"
Jennifer's learning disabilities specialist at McFarland High School, Kathryn McCosky, also testified. According to McCosky, the Miranda-rights card read to Jennifer was written at an eighth-grade reading level. 2 She testified that after reading Jennifer's file, it became evident that Jennifer had an auditory deficit disorder and that "[j]ust hearing something would be the worse [sic] way for her to pick up information." McCosky stated that in the classroom setting, Jennifer would almost always say she understood oral instructions when, in fact, she did not. McCosky testified that Jennifer reads at between a third and fourth-grade level, and that her ability to understand oral information is more impaired than her ability to understand written material.
The State called Jennifer's special education teacher at Indian Mounds Middle School, Carol Stephenson. Stephenson was directly responsible for Jennifer's special education programming for both seventh and eighth grade. During these grades, Stephenson spent approximately four hours a day with Jennifer. According to Stephenson, there were particular behaviors that indicated Jennifer either was not paying attention or was not understanding something. These included a failure to make eye contact, fidgeting, twisting her hair, turning her body away and getting angry. When presented with a copy of the Miranda-rights warning card that was read to Jennifer and asked whether she had an opinion to a reasonable professional probability as to whether Jennifer was capable of understanding the card's words and concepts, Stephenson replied:
Looking at this, based on what I would know about Jennifer, it would pertain a lot to how this was presented to her. For instance, if I was to give an example here, Jennifer has a hard time processing. And a lot of that has to do with speed of presentation of information.
So, you would have to say at a very slow speed, "You have the right to remain silent," stop, pause. I would then ask Jennifer if she understood that. I would maintain eye contact with her and wait for her to answer me yes or no. If she gave me an answer yes, I'd move on to the next one.
When asked whether she had an opinion to a reasonable professional probability as to whether Jennifer was capable of understanding her Miranda rights, assuming that the rights were read at 3:00 a.m., that while her rights were being read she was maintaining eye contact and nodding her head in an affirmative fashion, that her rights were read one at a time, that she was asked "Do you understand that right?" after each right was read, that she replied affirmatively after each question, that the entire procedure lasted two minutes, and that she was not emotional, Stephenson replied, "If she said yes, I accept the yes."
The trial court denied Jennifer's motion to suppress her statements. Jennifer then entered an Alford plea to the attempted first-degree intentional homicide count in the delinquency petition and no contest pleas to the remaining counts, and was adjudicated delinquent.
Following a dispositional hearing, the trial court transferred Jennifer's legal custody to the Wisconsin Department of Health and Social Services and committed her to the Lincoln Hills School until her twenty-first birthday. As part of its dispositional discussion, the court noted that in spite of life's pressures, adults and teenagers alike
Jennifer contends that her waiver of rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9 (1966), was not knowing and intelligent. 3 When seeking admission of statements made during custodial questioning, the State has the burden under Miranda to show that the individual was advised of his or her constitutional rights, 4 that he or she understood them, and that he or she intelligently waived them. See State v. Beaver, 181 Wis.2d 959, 966, 512 N.W.2d 254, 256 (Ct.App.1994).
The parties dispute the State's burden of proof in establishing that a waiver of Miranda rights was knowing and intelligent. In State v. Jones, 192 Wis.2d 78, 532 N.W.2d 79 (1995), amended on denial of reconsideration, 1995 WL 405686 (Wis. June 29, 1995), the Wisconsin Supreme Court addressed...
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