State v. Delaney

Citation640 N.W.2d 565,251 Wis. 2d 481
Decision Date23 January 2002
Docket Number01-1051
PartiesState of Wisconsin, Plaintiff-Respondent, v. Richard W. Delaney, Defendant-Appellant. AppealSTATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II DATED AND FILED
CourtCourt of Appeals of Wisconsin

APPEAL from a judgment of the circuit court for Kenosha County: S. MICHAEL WILK, Judge. Affirmed.


Richard W. Delaney appeals from a judgment of conviction and sentence for operating while intoxicated (OWI), third offense, contrary to Wis. Stat. 346.63(1)(a) and 346.65(2)(c). Richard2 first argues that the trial court erroneously denied his motion to suppress a statement of confession given to the police prior to receiving a Miranda3 warning. Richard contends that his statement that he was the driver of a car involved in a hit-and-run accident was obtained during a custodial interrogation and should have been suppressed.

2. Richard additionally challenges the trial court's application of the penalty enhancement statute, Wis. Stat. 939.62, as he was already subject to the penalty enhancers for multiple offenses pursuant to Wis. Stat. 346.65(2)(c).

3. We reject both of Richard's arguments. We affirm the judgment of conviction.


4. The facts relevant to the issues on appeal are undisputed. On November 19, 1999, Officer Kenneth Clelland of the City of Kenosha Police Department responded to a dispatch attempting to locate a brown station wagon with a certain license plate that had been involved in a hit-and-run accident. Dispatch identified the suspected driver as either Richard Delaney or Randy Delaney. Clelland located the vehicle in front of a residence later identified as that of Richard's brother, Martin Delaney. Clelland waited to approach the residence until his backup, Officer John Gray, had arrived. When the officers knocked on the door, a man who identified himself as Martin Delaney answered the door. He told the officers that he knew nothing about the car parked in front of his residence.

5. Clelland then asked Martin for identification. Martin asked if he could get it from the coffee table inside the residence and Clelland asked Martin if he could retrieve it himself. Martin agreed and Clelland entered the residence. Clelland noticed an individual sitting in a chair in the living room. Clelland asked his name and the individual replied with slurred speech that he was Randy Delaney. Clelland asked Randy to stand up, come outside and answer a few questions about the car parked out front. Clelland observed that Randy was "highly intoxicated and became somewhat verbally disorderly and was flailing his arms around asking ... what is going on." Clelland placed Randy in handcuffs, explaining that he was doing so for "officer safety due to [Randy] being uncooperative."

6. Clelland then asked Randy where Richard was and Randy replied that he thought Richard was somewhere in the house. Martin indicated that Richard had left about twenty minutes ago. After Clelland informed Martin that he could "end up in some sort of trouble" if Richard was really in the residence, Martin indicated that Richard was "hiding in the bedroom." Clelland went into the bedroom and found Richard hiding on the floor next to the bed furthest away from the door. Clelland asked Martin to stay out of the bedroom and then asked Richard to stand up. Richard's speech was slurred and he smelled of alcohol. Clelland observed that Richard was "getting pretty worked up." Concerned that there were three brothers at the residence, Clelland placed Richard in handcuffs as well, explaining to Richard that he was doing so for "officer safety."

7. Clelland testified that as he was walking Richard out of the residence, Richard denied driving the vehicle. Richard continued to talk to Clelland and Gray on the porch; however, the officers denied questioning him at that point. The officers decided not to make an arrest but instead to call a road supervisor to the scene. While waiting for the road supervisor, Richard indicated that he was cold. Clelland did not want Richard to return to the residence so he offered to let him and Randy sit in the squad cars. They agreed.

8. The officers then went to look at some dents on the station wagon. Clelland returned to the squad car to retrieve a flashlight. When Clelland opened the door to the squad car, Richard told him that he did not want his brother to get in trouble, that he was driving the car and that the officers should let Randy go. Clelland denied asking Richard any questions prior to his confession. Richard was placed under arrest and transported to the police department.

9. On November 22, 1999, Richard was charged with eight counts related to his involvement in a hit-and-run accident. Eventually, Richard entered a no contest plea to OWI, third offense, as a repeater pursuant to Wis. Stat. 346.63(1)(a), 346.65(2)(c) and 939.62. He also pled no contest to two counts of causing injury while operating while intoxicated in violation of 346.63(2)(a)1.

10. On January 14, 2000, Richard moved to suppress his statement, contending that he was in custody and under arrest from the moment Clelland put him in handcuffs. At the suppression hearing, Richard testified that when Clelland returned to the vehicle for his flashlight, "He looked at me, and he said, Mr. Delaney ... you know we have you, we have a witness, we have a statement from the person you got the car from that he gave you the car. He said if you just admit that you were driving, we can let your brother go."

11. In denying Richard's motion, the trial court found:

The Court is satisfied that the officers were investigating a hit and run accident incident. They were told that several of the Delaney brothers were involved; Richard and/or Randall Delaney were involved, and that when the officers arrived, the investigating officer was confronted by an extremely intoxicated individual, Randall Delaney, and for the officer's own safety, that Randall Delaney was handcuffed. And at that point Miranda would not apply to the officer's efforts to secure his own safety, and there was a situation in which the officer then attempted to determine whether or not the brother, Richard Delaney, the defendant, was on the premises, and discovered the defendant also in an intoxicated state in a bedroom, in a situation in which the arresting officer had every reason to try to stabilize the situation for purposes of his own safety. The Court believes that that situation viewed in the totality of the circumstances as it took place that evening insulates the officer from the requirement to ... give the Miranda warnings to the defendant. And that the placing the defendant in handcuffs at that point was not placing the defendant in custody, but merely was an act done for the safety of the officer....

As to the voluntariness of this, it's quite clear that the officers were still investigating this case, and that ... they were communicating merely the information as to why they were there, and the voluntary statement by the defendant, it appears to the Court, was voluntary, indicating that he was responsible and his brother was not responsible. It was not based on any coercion ....

The trial court therefore denied Richard's motion to suppress.

12. Richard also moved to dismiss the penalty enhancer under Wis. Stat. 939.62 as applied to the OWI count, arguing that it was improper to add this enhancer when the crime was already enhanced under Wis. Stat. 346.65(2)(c) because it is a third offense. The trial court denied the motion on the basis that Richard's prior felony offense provided a separate factual basis for the application of the 939.62 penalty enhancer.

13. Richard appeals.

A. Suppression of Statement

14. Richard first argues that his pre-Miranda statement that he was the driver of the car involved in the accident was obtained during a custodial interrogation and should have been suppressed by the trial court. Richard contends that he was in custody from the moment the police discovered him in his brother's bedroom, directed him to stand up and placed him in handcuffs. We conclude that although Richard was in custody, his statement was voluntary and not the result of police interrogation. As such, the statement was admissible.

15. When reviewing an order denying a suppression motion, this court will uphold the trial court's findings of fact unless they are clearly erroneous. State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996). However, the application of constitutional principles to the facts as found is a question of law which we decide without deference to the trial court's decision. State v. Patricia A.P., 195 Wis. 2d 855, 862, 537 N.W.2d 47 (Ct. App. 1995). Nonetheless, we value a trial court's decision on such a question. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).

16. For Miranda warnings to be required, a person must be in custody and under interrogation by the police. State v. Mitchell, 167 Wis. 2d 672, 686, 482 N.W.2d 364 (1992). We turn first to whether Richard was "in custody" at the time of his statement.

17. In determining whether an individual was in custody for purposes of Miranda, the court must consider the totality of the circumstances. State v. Mosher, 221 Wis. 2d 203, 210-11, 584 N.W.2d 553 (Ct. App. 1998), cert. denied, 530 U.S. 1232 (June 12, 2000) (No. 99-8955). "The test is `whether a reasonable person in the [suspect's] position would have considered himself or herself to be in custody, given the degree of restraint under the circumstances.'" Id. at 211 (citation omitted). This determination depends on the objective circumstances and not on the subjective views of the officers or the person being questioned. Id.

18. Clelland testified that he found Richard hiding at the far end of his brother's bedroom. Clelland directed Richard to stand up. Richard complied and asked Clelland "what was going on." Clelland told Richard they needed to...

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