State v. Badker

• Decision Date: 07 December 2000
• Docket Number: No. 99-2943-CR.,99-2943-CR.
• Citation: 2001 WI App 27,240 Wis.2d 460,623 N.W.2d 142
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Scott Leason BADKER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

240 Wis.2d 460

2001 WI App 27

623 N.W.2d 142

STATE of Wisconsin, Plaintiff-Respondent, v. Scott Leason BADKER, Defendant-Appellant.¹

No. 99-2943-CR.

Court of Appeals of Wisconsin.

Submitted on briefs June 23, 2000.

Decided December 7, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy A. Provis of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.

Before Roggensack and Deininger, JJ. and William Eich, Reserve Judge.

¶ 1. ROGGENSACK, J.

Scott Leason Badker appeals his convictions for first-degree intentional homicide and hiding a corpse. He claims that the circuit court erred by refusing to suppress his confession because of violations of his Fifth and Sixth Amendment rights and by refusing to dismiss the charge of hiding a corpse due to insufficient evidence. Because investigators scrupulously honored Badker's right to remain silent and because the crimes of first-degree intentional homicide and bail jumping are not so closely related as to extend Badker's Sixth Amendment right to counsel from the bail jumping charge to the first-degree homicide charge, we conclude that his suppression motion was properly denied. In addition, we conclude there was sufficient evidence to prove that Badker hid his victim's corpse. Therefore, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. On September 17, 1997, Scott Badker sexually assaulted his girlfriend, Susan Myszka, tied her up, put a noose around her neck, and told her that he was taking her to Ohio with him. Myszka managed to escape when Badker stopped for gas. He was charged in Marathon County with kidnapping, three counts of sexual assault, false imprisonment, and battery. On October 10, he was released on bail on the condition that he have no contact, including telephone contact, with Myszka. ¶ 3. Myszka wrote a letter to Badker asking him to explain why he had assaulted her, but she did not mail it. On October 25, Badker telephoned Myszka at her home to arrange a meeting. Myszka consented and met him at a gas station in Spencer. She brought the letter with her. Badker read it, then put it in an envelope addressed to his attorney and left it at a Marshfield grocery store with the understanding that the clerk would mail it. Badker and Myszka drove around in Badker's pickup throughout the evening. Eventually, they parked the truck outside a locked gate leading into the Necedah Wildlife Refuge, where, according to his confession which is the major focus of this appeal, Badker strangled Myszka to death and used a blanket to drag her body into a ditch. A fur trapper found her body early on October 26th.

¶ 4. After killing Myszka, Badker went home and burned the blanket, Myszka's purse, and some of her clothing. He then telephoned his lawyer to tell him that Myszka had been bothering him, and he mentioned Myszka's letter. The lawyer told Badker to bring the letter to his office the following day, so Badker returned to the grocery store, got the letter, and brought it to the lawyer's office on October 27. He did not tell the lawyer that he had killed Myszka. On October 30, a complaint was filed in Marathon County Circuit Court charging Badker with bail jumping based on his telephone call to Myszka on October 25. An arrest warrant was issued for the bail jumping at the same time.

¶ 5. Badker was arrested on the bail jumping charge in Eagan, Minnesota, early in the morning on October 31 by Minnesota and Wisconsin police officers. Special Agent Elizabeth Feagles of the Wisconsin Department of Criminal Investigation and Detective Gary Jepsen of the Marshfield Police Department attempted to interview Badker when he arrived at the Eagan police station. Badker told them that he had an attorney representing him on the Marathon County charges, and Feagles and Jepsen told him that they did not intend to discuss those charges. Jepsen then began reading Badker his Miranda² rights, but Badker interrupted and said that his attorney had told him not to talk with police officers. Feagles and Jepsen immediately terminated the interview and turned him over to Eagan Detective Douglas Mattison for booking. During booking, Mattison said to Badker, "So you don't want to talk, huh?" Badker replied, according to Mattison, "I am not sure what I want to do." Mattison completed the booking process, then informed Feagles and Jepsen of Badker's comment. Badker was taken to an interview room, where Feagles and Jepsen asked him whether he would like to talk to them. Badker declined; Feagles and Jepsen left Badker alone in the room.

¶ 6. A few minutes later, Badker began groaning and rubbing his eyes. Another Eagan detective, Kevin McGrath, went in to check on him and asked whether he was alright. McGrath said Badker replied, "No, I think I am sick" and began pushing his left index finger against his forehead. McGrath again asked if he was alright, and he relayed that Badker replied, still pointing at his head, "I think I am sick right here. I couldn't help it. I just snapped." McGrath asked whether he wanted medical assistance, and McGrath said Badker replied, "I think I need some help." McGrath asked what type of help he wanted, and Badker said that he wanted to talk with the Wisconsin investigators. Feagles and Jepsen re-entered the interview room and read Badker his Miranda warnings. Badker told the Wisconsin investigators that he wanted to talk with them; then he confessed to murdering Myszka and dragging her body into the ditch.

¶ 7. Subsequently, Badker was charged with first-degree intentional homicide and hiding a corpse. Before trial, he moved to suppress his confession, and the circuit court denied the motion. Badker was tried before a jury, convicted on both counts, and sentenced to life in prison. He appeals.

DISCUSSION

Standard of Review.

[1-3]

¶ 8. Issues concerning a criminal defendant's right to counsel involve questions of historic fact applied to a constitutional standard. State v. Dagnall, 2000 WI 82, ¶ 26, 236 Wis. 2d 339, 354-55, 612 N.W.2d 680, 687. We will uphold a circuit court's findings of historic fact unless they are clearly erroneous. WISCONSIN STAT. § 805.17 (1997-98).³ However, whether the circuit court's findings of fact satisfy a constitutional standard is a question of law that we review de novo. Dagnall, 2000 WI 82

at ¶ 27.

[4]

¶ 9. In reviewing the sufficiency of the evidence to support a criminal conviction, we do not substitute our judgment for that of the trier of fact unless the evidence, viewed in the light most favorable to the State and the conviction, is so lacking in probative value and force that no reasonable trier of fact could have found guilt beyond a reasonable doubt. State v. Steenberg Homes, Inc., 223 Wis. 2d 511, 517, 589 N.W.2d 668, 671 (Ct. App. 1998),review denied, 225 Wis. 2d 489, 594 N.W.2d 384 (1999) (citation omitted).

Fifth Amendment Right to Remain Silent.

¶ 10. Badker first argues that the circuit court should have suppressed his statements to the police because they failed to scrupulously honor his invocation of his right to remain silent before he confessed to Myszka's murder. He also claims that physical evidence obtained from his truck and from a burn barrel located at his residence should have been suppressed as the fruit of a Fifth Amendment violation. We disagree.

[5]

¶ 11. The Fifth Amendment to the United States Constitution provides, "No person ... shall be compelled in any criminal case to be a witness against himself."⁴ "The critical safeguard of the right to silence is the right to terminate questioning by invocation of the right to silence." State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866, 869 (1985); see also Michigan v. Mosley, 423 U.S. 96, 103 (1975)

; Miranda v. Arizona, 384 U.S. 436, 474 (1966). An accused person may waive the right to remain silent if he or she does so knowingly, intelligently, and voluntarily and does so in an express statement. Miranda, 384 U.S. at 475-76,

citing Glasser v. United States, 315 U.S. 60, 62 (1942).

[6, 7]

¶ 12. However, the state may not badger an accused into waiving that right. "The state may again interrogate the accused after the right to silence has been invoked provided that right to silence is `scrupulously honored.'" Hartwig, 123 Wis. 2d at 284, 366 N.W.2d at 869, quoting Mosley, 423 U.S. at 104

. This protection exists to shield the accused from "repeated efforts to wear down his resistance and make him change his mind." Mosley, 423 U.S. at 105-06. Mosley outlines a five-factor framework to analyze whether interrogation was resumed without violating the defendant's right to remain silent: (1) whether the original interrogation was promptly terminated; (2) whether interrogation was resumed after a significant period of time; (3) whether the accused received Miranda warnings at the beginning of the subsequent interrogation; (4) whether a different officer resumed the questioning; and (5) whether the subsequent interrogation was limited to a different crime than the previous interrogation. Mosley, 423 U.S. at 105-06; Hartwig, 123 Wis. 2d at 284,

366 N.W.2d at 869. "The absence or presence, however, of the Mosley factors is not exclusively controlling and these factors do not establish a test which can be `woodenly' applied." Hartwig, 123 Wis. 2d at 284-85,

366 N.W.2d at 870 (citation omitted).

[8-10]

¶ 13. Therefore, "law enforcement officers conducting a custodial interrogation must employ procedural safeguards sufficient to protect a defendant's ... privilege against compelled self-incrimination." State v. Armstrong, 223 Wis. 2d 331, 351, 588 N.W.2d 606, 615 (1999),modified225 Wis. 2d 121, 591 N.W.2d 604 (1999) (citations omitted). Determining whether an "interrogation" has taken place focuses on the perception of the accused, not the intent of the police officer...