State v. Davis
| Decision Date | 26 June 2008 |
| Docket Number | No. 2006AP1954-CR.,2006AP1954-CR. |
| Citation | 751 N.W.2d 332,2008 WI 71 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Keith A. DAVIS, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs and oral argument by Chris A. Gramstrup, Superior.
For the plaintiff-respondent there was oral argument by Sally L. Wellman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
ON CERTIFICATION FROM THE COURT OF APPEALS
This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2005-06). Keith A. Davis was charged with first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (2003-04).1 Davis sought to suppress all oral and written statements he provided to the Green Bay Police Department on December 17, 2003. The Brown County circuit court judge, Donald R. Zuidmulder, denied Davis's motion to suppress. Davis proceeded to trial and was convicted of first-degree sexual assault of a child. He now requests that his judgment of conviction be vacated and his case be remanded to the circuit court for a new trial, which would exclude his inculpatory statement. We decline that request and affirm Davis's conviction.
¶ 2 This case requires us to decide whether Davis's statement was so closely associated with the voice stress analysis that it must be suppressed. When a statement is so closely associated with the voice stress analysis that the analysis and statement are one event rather than two events, the statement must be suppressed. State v. Greer, 2003 WI App 112, ¶¶ 9-12, 265 Wis.2d 463, 666 N.W.2d 518. As is the case with any statement, the statement must also survive constitutional due process considerations of voluntariness.
¶ 3 We conclude that Davis's statement was not so closely associated with the voice stress analysis as to render it one event. Rather, the examination and interview were two totally discrete events. Therefore, because his statement was given voluntarily and at a totally discrete interview, we conclude that Davis's statement was admissible.
¶ 4 On November 21, 2003, Detective James Swanson of the Green Bay Police Department went to the residence of Keith A. Davis to speak with him about an alleged sexual assault of a juvenile, K.L.D., d.o.b. 12/14/96. Davis invited the detective into the house. The detective informed Davis that he was not under arrest. Davis gave the detective a "tour" of his residence in response to the detective's request to look around for evidence. With consent, the detective collected bedding from the alleged victim's room as well as a shaving cream container from a bathroom. It is unclear what else may have been said during that visit, but when the detective asked Davis if he would be willing to come down to the police department to talk about the incident, Davis said that he would drive himself to the station later. The detective left, and on that same date, Davis drove to the Green Bay Police Department and talked with Detective Swanson in the interview room. At the police station, Davis was informed again that he was not under arrest and was free to leave at any time. At the station, Davis answered some questions but denied the allegations. Several times during that interview and before Davis left, he offered to take a polygraph examination. At the conclusion of the interview, Detective Swanson told Davis that he may follow up with him with respect to Davis taking a polygraph or voice stress analysis test.
¶ 5 On December 17, 2003, Detective Swanson returned to Davis's residence around 8:00 a.m. The detective asked Davis if he would further discuss the alleged incident regarding K.L.D. and whether Davis was still willing to undergo a polygraph or voice stress analysis test. Davis said that he would drive himself to the police station, but he wanted to shower first. The detective then returned to the police station.
¶ 6 Around 9:00 a.m., Davis left Detective Swanson a voice message that his car would not start, so he would be walking to the Green Bay Police Department and would be later than expected. Due to the weather that day and the route Davis would need to take in order to get to the police department, Detective Swanson decided to get in his car and see if he could find Davis walking. The detective intended to offer Davis a ride. At around 9:15 or 9:20 a.m., as the detective was driving south on Broadway, he saw Davis walking on the sidewalk. Davis waved at Detective Swanson. Detective Swanson made a u-turn, pulled up along side Davis, and asked him if he wanted a ride. Davis got in the front seat of Detective Swanson's unmarked squad car, and they proceeded to the Green Bay Police Department.
¶ 7 Once at the police station, Detective Swanson and Davis went into an interview room. Detective Swanson explained to Davis that he was not under arrest, did not have to talk with him, and could leave at any time. Davis said that he understood. Detective Swanson told Davis that he wanted to talk with him and have him take the voice stress analysis, which they had discussed before, and Detective Swanson told Davis that someone else would conduct the test. Davis was cooperative and wanted to talk.
¶ 8 Detective Swanson left the interview room and returned with Detective Buenning, the officer who conducted the test. After being introduced to Davis, Detective Buenning took Davis to another room, referred to as the "family room," for the voice stress analysis test. Detective Swanson did not accompany Davis to the "family room" for testing, nor was he present during the test.
¶ 9 Once in the room where Davis was to undergo the voice stress analysis, Detective Buenning explained the test and obtained Davis's consent.2 Detective Buenning then asked Davis nine test questions, which consisted of two relevant questions, five irrelevant questions, and two control questions. Davis actually helped formulate the following relevant questions: (1) "Did you put your penis into [K.L.D.'s] vagina?"; (2) "Did you put your penis in [K.L.D.'s] mouth?" Davis agreed that those were relevant questions. For the test, Detective Buenning used a laptop, and a lapel microphone was clipped onto Davis's collar. After the test, Davis went back to the original interview room. Detective Buenning reviewed the results, and then, pursuant to standard procedure, two other officers independently evaluated the results. All three officers separately concluded that Davis was being deceptive. Outside the presence of Davis, and in a separate room, Detective Buenning discussed the results with Detective Swanson. He told Detective Swanson that he believed Davis had been deceptive. Both detectives then went to the original interview room and then brought Davis back to the "family room."
¶ 10 With Detective Swanson in the "family room," Detective Buenning told Davis that his answers were deemed deceptive and showed Davis the results from the computer charts. Davis repeatedly said that he did not do anything. Detective Buenning then asked Davis, "Well, if you told me yourself that her hymen was busted, wouldn't that support the results of the test?"3 Davis did not verbally respond but nodded his head up and down. Detective Buenning asked if he wanted to talk about this and Davis said "yes." Detective Buenning asked Davis if he preferred to talk with Detective Swanson. Davis indicated that he did.4 At that point, Detective Buenning stated, "I'm finished here" and then he closed up his laptop and left the room with all of the voice stress analysis equipment. Detective Buenning told Davis that he was finished with the test.5
¶ 11 Detective Swanson and Davis were then alone in the "family room." Detective Swanson stated, "Keith, there's some things we need to talk about reference [K.L.D.]." Davis nodded his head yes, and they then went back to the original interview room. Detective Swanson left Davis in the interview room and then went to get statement forms. Approximately five minutes later, at about 11:00 a.m., Detective Swanson asked Davis to explain what happened with K.L.D. As Davis gave a statement, Detective Swanson wrote it on the statement form. While Davis gave his statement, Detective Swanson did not mention or reference the voice stress analysis test or the results. When Davis was finished talking, the detective gave Davis the written document to review. Davis read the statement partly out loud and then to himself. Detective Swanson had him read the beginning of the statement out loud in order to make sure that Davis could read the officer's writing. Detective Swanson explained to Davis that if anything was incorrect or needed to be changed, Davis should correct it. However, Davis made no corrections. After reading the statement, Davis signed both pages, and the statement was completed at about 11:45 a.m.
¶ 12 After Davis signed the statement, he "kind of broke down" and was crying. He stated that he "felt like he wanted to die." Around noon that day, Detective Swanson took Davis to the crisis center. Detective Swanson did not have further contact with Davis that day.
¶ 13 On February 16, 2004, Davis was charged with one count of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1). On May 28, 2004, a preliminary hearing occurred, and Davis was bound over for trial. Davis was arraigned on an information that charged him with one count of sexual assault. The information was amended on the day of trial, September 29, 2005, to include three counts of first-degree sexual assault of a child.
¶ 14 On June 11, 2004, Davis moved the circuit court to suppress all of his oral and written statements from December 17, 2003. On March 29, 2005, the circuit court conducted a hearing on the motion. On April 15, 2005, the circuit court issued an oral decision and denied the motion. The circuit...
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