State v. Dobbs

Citation2020 WI 64,392 Wis.2d 505,945 N.W.2d 609
Decision Date03 July 2020
Docket NumberNo. 2018AP319-CR,2018AP319-CR
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Timothy E. DOBBS, Defendant-Appellant-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

For the defendant-appellant-petitioner, there were briefs filed by Michael D. Rosenberg and Community Justice, Inc., Madison. There was an oral argument by Michael D. Rosenberg.

For the plaintiff-respondent, there was a brief filed by Michael C. Sanders, assistant attorney general; with whom on the brief is Joshua L. Kaul, attorney general. There was an oral argument by Michael C. Sanders.

An amicus curiae brief was filed on behalf of The Innocence Projects, In., and the Wisconsin Innocence Project by Andrew T. Dufresne, Sopen B. Shah, and Perkins Coie LLP, Madison; with whom on the brief was Keith A. Findley and the Wisconsin Innocence Project, Madison.

DALLET, J., delivered the majority opinion of the Court with respect to Parts I, II, and III.C., in which all Justices joined; the majority opinion of the Court with respect to Part III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and HAGEDORN, JJ., joined; and the majority opinion of the Court with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined.

REBECCA FRANK DALLET, J.

[392 Wis.2d 514]

¶1 The petitioner, Timothy E. Dobbs, seeks review of the court of

[392 Wis.2d 515]

appeals' decision1 affirming his judgment of conviction for homicide by intoxicated use of a vehicle.

¶2 Dobbs raises two issues on appeal. First, Dobbs asserts that the circuit court improperly excluded the expert testimony of Dr. Lawrence White.2 Second, Dobbs claims that the circuit court erred in denying his motion to suppress statements that he made to law enforcement because he was subject to custodial interrogation and not read the Miranda warnings,3 or, in the alternative, because his statements were not voluntarily made.4

¶3 We conclude that the circuit court properly exercised its discretion when it excluded Dr. White's exposition testimony for a lack of fit with the facts of Dobbs's case. Additionally, although we determine that several of Dobbs's statements should have been suppressed because he was subject to custodial interrogation and was not read the Miranda warnings, we conclude that the error was harmless. We further conclude that all of Dobbs's statements were voluntary.

¶4 We therefore affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶5 On the morning of September 5, 2015, a vehicle crossed several lanes of traffic and a median

[392 Wis.2d 516]

area, drove over a curb, and struck a pedestrian. The vehicle left the scene. Several blocks from the scene, Madison Police Officer Jimmy Milton noticed a vehicle with a completely deflated tire and exposed wheel rim on the front driver's side that matched the witnesses' description of the vehicle involved in the hit and run. Officer Milton positioned his squad car to prevent the driver, later identified as Dobbs, from leaving.

¶6 With his hand on his service weapon, Officer Milton instructed Dobbs to show his hands and exit the vehicle. Dobbs was immediately handcuffed and placed in the squad car. Officer Milton told Dobbs he was "being detained" for an ongoing "accident investigation" and that he was suspected of striking a pedestrian. Shortly after placing Dobbs in the squad car, Officer Milton learned that the pedestrian had died.

¶7 At 7:30 a.m., Officer Milton started questioning Dobbs while he remained handcuffed in the backseat of the locked squad car. The audio from Officer Milton's microphone did not start recording until 7:34 a.m.5 At 7:34 a.m., Officer Milton asked Dobbs his date of birth and questions about his vehicle's registration. At 7:36 a.m., Officer Milton said to Dobbs "I smell alcohol." Over the course of the next hour, Officer Milton talked to Dobbs about a variety of topics and asked him numerous questions, including:

"Do you have any medical issues other than that splint that you were wearing?"
"Do you take medications for depression and anxiety?"

[392 Wis.2d 517]

"Do you have any injuries from the collision with the curb?"
"So [those bruises and scratches on your face] are all old?"

In response to Officer Milton's comments, Dobbs stated that he had not slept in 40 hours and had not taken his medication that morning. Dobbs told Officer Milton that "he was adjusting his arm in the sling, and he lost control of the vehicle and he hit the curb, and that's what caused the damage to his front driver's side tire."

¶8 About 30 minutes into the questioning, Dobbs said "I take it I'm going to jail." Officer Milton never responded to Dobbs's statement, but he made several subsequent comments that there was an ongoing investigation and that was why there were up to three other officers on the scene at a time, including a K-9 unit.

¶9 During the questioning, Officer Milton exited the squad car several times to observe the exterior and interior of Dobbs's vehicle, alongside two other officers. Officer Milton saw "impact damage" to the front end and hood of Dobbs's vehicle, including two dents and a tree branch that was lodged in the vehicle's hood. Officer Milton also observed a can of air duster6 in plain view in the front center console, which was within reach of the driver's seat.7 Officer Milton described the vehicle's damage in detail to Dobbs and

[392 Wis.2d 518]

made comments like "it's obvious you hit something because your wheel is damaged."

¶10 After about an hour, Officer Milton removed Dobbs's handcuffs and he was escorted out of the locked squad car to perform field sobriety tests. Dobbs displayed no signs of intoxication during the tests, but Officer Milton asked him to submit to a blood test. Dobbs agreed and was subsequently transported to a nearby hospital.

¶11 Dobbs arrived at the hospital at approximately 9:08 a.m. Additional officers arrived at the hospital, including Officer Nicholas Pine, who began a drug recognition evaluation at approximately 9:45 a.m.8 As part of that evaluation, Dobbs was given a preliminary breath test, which revealed that Dobbs did not have any alcohol in his system. Nearly three hours after Dobbs was first handcuffed and placed in the locked squad car, at 10:19 a.m., Officer Pine first read Dobbs the Miranda warnings. Dobbs waived his Miranda rights and was questioned by Officer Pine.

¶12 Dobbs was then formally placed under arrest, informed that the pedestrian had died, and read the Miranda warnings for a second time by Officer Milton. Dobbs again waived his Miranda rights and agreed to answer questions. Dobbs eventually confessed that he had taken a puff of the air duster while he was driving, passed out, swerved, and then drove away from the scene.

¶13 Dobbs was transported to the City County Building garage where Officer Paul Fleischauer continued to question him. Dobbs confessed to Officer Fleischauer that he had been huffing for pain management, in addition to taking an antidepressant and

[392 Wis.2d 519]

prescribed pain medication. Dobbs said he had inhaled the air duster while driving, likely striking the pedestrian after he lost consciousness.

¶14 Dobbs was driven to another hospital to receive medical clearance to be booked into the jail. While at that hospital, Officer Van Hove heard Dobbs say twice, unprompted, that he had "taken a puff of Dust-Off and had killed a man" with his vehicle. Officer Van Hove did not ask any follow-up questions in response.

¶15 Shortly thereafter, Dobbs indicated he wanted to call his father, despite being warned that anything he said on the phone could ultimately be used in court. Officer Van Hove overheard Dobbs tell his father that he went to Menards to buy air duster, took a puff on his way home, and then drove over a curb and "killed a man." He also heard Dobbs say "he understood his rights and wanted to be honest." Later that night, Officer Bryan Dyer heard Dobbs spontaneously repeat the same story.

¶16 The next morning, despite Officer Dean Baldukas's reminder to Dobbs that he was under arrest "and still had rights associated with that," Dobbs blurted out, unprompted, that he had taken a puff of the air duster. Additionally, Officers Linda Baehmann and Bryan Dyer overheard similar spontaneous comments from Dobbs regarding huffing air duster.

¶17 Dobbs was ultimately charged with one count of homicide by intoxicated use of a vehicle and one count of hit and run resulting in death.

¶18 Prior to trial, the circuit court heard a number of motions, two of which are relevant to this appeal. The first was Dobbs's motion to suppress his

[392 Wis.2d 520]

statements on the grounds that: (1) he was not read the Miranda warnings despite being subject to custodial interrogation; and (2) all of his statements were not voluntarily made due to his mental and physical condition. The circuit court denied Dobbs's motion to suppress, concluding that the "first interrogation that would have required a Miranda warning, had the defendant been in custody, was the interview by [Officer] Pine," at 10:19 am, when Officer Pine first read Dobbs the Miranda warnings. Further, the circuit court concluded that "[e]ach of the statements made by the defendant to Officers Milton, Pine, Kleinfeldt, Van Hove, Dyer, Baldukas, and Baehmann has been demonstrated to have been voluntary and not the product of coercion in any degree."9

¶19 The second pre-trial motion relevant to this appeal was the State's motion to exclude the testimony of Dobbs's proffered experts, including Dr. Lawrence White. The defense had named Dr. White to testify generally about the phenomenon of false confessions, as well as the interrogation techniques and dispositional characteristics that...

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