State v. Deets

• Decision Date: 22 September 1994
• Docket Number: No. 93-1174-CR,93-1174-CR
• Citation: 523 N.W.2d 180,187 Wis.2d 630
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Roger Fay DEETS, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 180

523 N.W.2d 180

187 Wis.2d 630

STATE of Wisconsin, Plaintiff-Appellant, v. Roger Fay DEETS, Defendant-Respondent.

No. 93-1174-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 6, 1994.

Opinion Released Sept. 22, 1994.

Opinion Filed Sept. 22, 1994.

Before EICH, C.J., and GARTZKE, P.J., and SUNDBY, J.

GARTZKE, Presiding Judge.

The State appeals from a pretrial order suppressing statements Roger Deets made to a detective on grounds that police coercion produced them. We conclude that no coercive police conduct occurred, and therefore reverse the order.

Two criminal cases against Deets were consolidated for trial. In one case, Deets is charged with seven counts of first-degree sexual assault of a child, § 948.02(1), STATS., five of which involved alleged sexual contact with K.L.M., ¹ and two of which involved alleged sexual contact with S.L.S. In the other case, Deets is charged with two additional counts of first-degree sexual assault of K.L.M. Deets pleaded not guilty to all the charges.

Before the charges were filed, Detective Flood of the Rock County Sheriff's Department interrogated Deets. After the charges were filed, Deets moved to suppress all statements he made to Flood during that interrogation. At the conclusion of an evidentiary hearing, the trial court found "evidence of improper and coercive police conduct" in three particulars. First, during the course of the interrogation, the detective expressed dissatisfaction with Deets's answers and told Deets he should think about the consequences and ramifications of obstructing the investigation. Second, although Flood made no promise of leniency, he suggested that if Deets did not cooperate, the district attorney would look at the case differently. Third, the detective suggested that if Deets did not cooperate and the victims were forced to testify, the victims (Deets's stepdaughter and her friend) would suffer great trauma. The court concluded that in view of its three findings, it was unable to find beyond a reasonable doubt that Deets's inculpatory statements to the detective were voluntary. It held that the statements were the result of improper police pressure, and therefore suppressed them.

Under the Fifth Amendment to the United States Constitution, a defendant's involuntary statements are inadmissible to prove his or her guilt on the charged offense, and this prohibition applies to state criminal defendants through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). As we said in State v. Pheil, 152 Wis.2d 523, 535, 449 N.W.2d 858, 863 (Ct.App.1989), "The fourteenth amendment prohibits involuntary statements because of their inherent unreliability and the judicial system's unwillingness to tolerate illegal police behavior."

When government coercion is at issue, we review the trial court's factual findings to determine whether they are clearly erroneous. State v. Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987). That is unnecessary in the case before us because the State concedes the accuracy of the trial court's three factual findings. Because the historical facts have been established, we independently determine whether they constitute coercive conduct. Id. We make that determination as an appellate court "in order to ensure that the scope of constitutional protections does not vary from case to case." State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987).

"[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment," Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 321-22, 93 L.Ed.2d 473 (1986), but coercive activity does not, in and of itself, establish involuntariness. As we said in Pheil, 152 Wis.2d at 535, 449 N.W.2d at 863, "[d]etermination of whether a statement is voluntary requires a balancing of the personal characteristics of the defendant against the coercive or improper police pressures." Thus, a trial court should not undertake the balancing analysis unless some improper or coercive police conduct has occurred. Id.; Clappes, 136 Wis.2d at 239-40, 401 N.W.2d at 767.

For that reason we examine the trial court's three factual findings to determine whether they justify the conclusion that the detective acted coercively. We conclude that they do not.

Deets furnishes no citation to support the conclusion that the detective telling Deets he should think about the consequences of obstructing the investigation shows a coercive practice. An officer may express dissatisfaction with a defendant's responses during an interrogation. The officer need not sit by and say nothing when the person provides answers of which the officer is skeptical. Knowingly obstructing an officer who is acting in an official capacity and with lawful authority is a misdemeanor. Section 946.41(1), STATS. Obstruction includes knowingly giving false information to an officer. Section 946.41(2)(a). Deets was not told that if he continued to give answers, which in the opinion of the detective were false, he would be charged with that crime. We hold that the trial court's first factual finding does not show coercive conduct.

The trial court's second finding is no basis for the conclusion that coercive conduct occurred. An officer telling a defendant that his cooperation would be to his benefit is not coercive conduct, at least so long as leniency is not promised. State v. Cydzik, 60 Wis.2d 683, 692, 211 N.W.2d 421, 427 (1973). Similarly, coercive conduct does not occur when, as here, an officer, without promising leniency, tells a defendant that if he or she does not cooperate the prosecutor will look upon the case differently. In either case, the officer does nothing other than predict what the prosecutor will do, without making a promise one way or the other. ²

Nor does the trial court's third finding justify the conclusion that coercive conduct occurred. The suggestion that unless Deets cooperated the alleged victims would be forced to testify and would suffer great trauma was a reasonable prediction. A person in Deets's position need not be told that if a trial is necessary the alleged victims will testify he sexually assaulted them, and that the experience will be traumatic.

Because the trial court's factual findings do not justify the conclusion that the police acted coercively, we reverse the order suppressing Deets's statements.

Order reversed and matter remanded for further proceedings.

SUNDBY, Judge (dissenting).

The trial court found evidence of improper and coercive police conduct in three particulars and suppressed statements that defendant, Roger Deets, made to a detective. The State concedes the accuracy of the trial court's factual determinations. Those were as follows. First, the detective interrogating Deets told him that he was obstructing the investigation of the case and he should think about the consequences of that obstruction. Second, the detective told Deets that if he did not cooperate, the district attorney would look at the case differently. And third, the detective suggested that if Deets forced the victims, Deets's stepdaughter and her friend, to testify, they would suffer great trauma.

The majority concludes as a matter of law that these three instances do not add up to coercive police activity. I disagree. Certainly, the cumulative effect of the detective's interrogation was to coerce Deets's statements.

The majority bases its conclusion on a statement of the United States Supreme Court in Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521-22, 93 L.Ed.2d 473 (1986), where the court said: "We hold that coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."

The Court did not define what constituted "coercive police activity." It noted, however, that police interrogators have turned away from such interrogation techniques as interrogating a defendant, on medication, for over eighteen hours without food or sleep, Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968); holding a gun to the head of a wounded confessant to extract a confession, Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); engaging in sixteen days of incommunicado interrogation in a closed cell without windows, and with limited food, Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); holding a defendant for four days without adequate food or medical attention, Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); conducting five days of repeated questioning during which police employed coercive tactics, Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); holding a defendant incommunicado for three days with little food, and informing defendant that the chief of police was preparing to admit a lynch mob into the jail, Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); and questioning defendant by relays of officers for thirty-six hours without sleep, Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944). Connelly, 479 U.S. at 163 & n. 1, 107 S.Ct. at 519 & n. 1.

The Connelly Court noted that police interrogators have turned to more subtle forms of psychological persuasion. 479 U.S. at 164. Psychological persuasion can be just as effective in obtaining a defendant's confession as the tactics described in the above cases.

This point is illustrated in a number of cases. In United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), the court determined that FBI agents used coercive tactics to secure a confession, and accordingly, ruled the confession involuntary. The facts in Tingle resemble, in some respects, the facts in this case. The defendant, who worked at a...