State v. Duchow

• Citation: 2008 WI 57,749 N.W.2d 913
• Decision Date: 10 June 2008
• Docket Number: No. 2005AP2175-CR.,2005AP2175-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Brian Harold DUCHOW, Defendant-Appellant-Cross Petitioner.
• Court: United States State Supreme Court of Wisconsin

749 N.W.2d 913

2008 WI 57

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Brian Harold DUCHOW, Defendant-Appellant-Cross Petitioner.

No. 2005AP2175-CR.

Supreme Court of Wisconsin.

Argued December 13, 2007.

Decided June 10, 2008.

For the plaintiff-respondent-petitioner the cause was argued by David J. Becker, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant-cross petitioner there were briefs and oral argument by Melinda A. Swartz, assistant state public defender.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

We review an unpublished court of appeals decision¹ reversing a circuit court's² denial of Brian Duchow's (Duchow) motion to suppress threatening statements he directed to a disabled child aboard a public school bus. The child, Jacob M., surreptitiously recorded Duchow's statements using a voice-activated tape recorder that his parents placed in his backpack. The circuit court concluded that the tape-recorded statements were not "oral communication" as defined by the Electronic Surveillance Control Law, Wis. Stat. §§ 968.27-.33 (2005-06),³ and accordingly, the strictures of the Law did not operate to prevent use of the statements. In contrast, the court of appeals concluded that the statements were oral communication and that the oral communication was lawfully intercepted. However, the court of appeals also concluded that, notwithstanding the statements' lawful interception, the statements could not be admitted at trial because they were not intercepted in accord with the "under color of law" requirement of Wis. Stat. § 968.29(3)(b). State v. Duchow, 2007 WI App 162, ¶ 42, 303 Wis.2d 744, 735 N.W.2d 192.

¶ 2 The dispositive issue in this appeal is whether Duchow's tape-recorded statements were "oral communication" as defined in Wis. Stat. § 968.27(12), a part of the Electronic Surveillance Control Law. We conclude that the statements were not "oral communication" because Duchow had no reasonable expectation of privacy in the statements. Because the statements are not "oral communication," they do not fall within the scope of the Electronic Surveillance Control Law; and therefore, the Electronic Surveillance Control Law provides no basis for suppression.⁴ Accordingly, we reverse the decision of the court of appeals.

I. BACKGROUND

¶ 3 Duchow, a former public school bus driver,⁵ was charged in a criminal complaint with one count of physical abuse of a child, contrary to Wis. Stat. § 948.03(2)(b), and one count of disorderly conduct, contrary to Wis. Stat. § 947.01, as a result of his alleged statements and acts while driving Jacob M. to and from school on April 29, 2003.

¶ 4 Jacob, who suffers from Downs Syndrome and Attention Deficit Disorder, was nine years old at the time the complaint was filed. Each morning, he was the first child to board the school bus driven by Duchow.

¶ 5 In the spring of 2003, Jacob's parents became concerned about recent adverse changes in Jacob's behavior. Jacob had allegedly spit at Duchow.⁶ In addition, Jacob's parents had observed him punch his toys, "kick at" the family dog and resist boarding the school bus in the morning. Moreover, Jacob's teacher relayed to his parents that Jacob had cried at school when it was time for him to board the bus to go home. Previously, Jacob had not exhibited such behavior.

¶ 6 Jacob's parents suspected something was amiss on the school bus. They feared Jacob's bus driver, whom they knew was Duchow, might be verbally or physically abusing him. As a result of their concern, Jacob's parents placed a voice-activated recorder in Jacob's backpack before he boarded the school bus on April 29, 2003. Jacob's parents listened to the tape when Jacob returned home from school that day. The tape recorded Duchow making the following statements to Jacob:

• "Stop before I beat the living hell out of you."

• "You'd better get your damn legs in now."

• "Do I have to tape your mouth shut because you know I will."

• "Do you want another one of these?"

• "I'm gonna slap the hell out of you."

• "Do you want me to come back there and smack you?"

The sound of what Jacob's parents believed to be a slap was also recorded.

¶ 7 Jacob's parents played the tape before a Milwaukee Police Officer, who investigated the matter. The officer visited Duchow's home and conducted brief interviews with him on three occasions. According to the complaint, during these interviews, Duchow admitted that he had threatened Jacob. Duchow described the threats he had made as threatening to have Jacob removed from the bus, threatening to slap Jacob, and threatening to tape Jacob's mouth shut. Duchow further admitted that on April 29, 2003 he slapped Jacob twice in the face with an open hand.

¶ 8 After the State filed the information against Duchow, Duchow moved to suppress the contents of the tape recording on grounds that the recording was made in violation of the Electronic Surveillance Control Law. The circuit court initially granted Duchow's motion to suppress, but later reversed that decision when it revisited the issue as a result of the State's motion for reconsideration. On reconsideration, the circuit court concluded that Duchow's tape-recorded statements were not "oral communication" within the meaning of the Electronic Surveillance Control Law; and therefore, it held against Duchow.

¶ 9 Duchow pled guilty to physical abuse of a child and the State dismissed the disorderly conduct charge. Judgment was entered convicting Duchow of physical abuse of a child.

¶ 10 Duchow appealed, and the court of appeals reversed the circuit court's order denying Duchow's motion to suppress his tape-recorded statements. The court of appeals concluded that the statements had been lawfully intercepted, but they could not be admitted at trial because they were not intercepted "under color of law" as Wis. Stat. § 968.29(3)(b) requires. Duchow, 303 Wis.2d 744, ¶ 42, 735 N.W.2d 192. The State petitioned for review, which we granted.

II. DISCUSSION

A. Standard of Review

¶ 11 This case requires us to interpret and to apply portions of the Electronic Surveillance Control Law. We review questions of statutory interpretation and application independently, but benefiting from the decisions of the court of appeals and the circuit court. Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110.

B. Oral Communication

1. Wisconsin Stat. § 968.27(12)

¶ 12 Resolution of the question of whether Duchow's tape-recorded statements constitute "oral communication" under the facts of this case requires us to interpret and to apply Wis. Stat. § 968.27(12), a provision of the Electronic Surveillance Control Law. "[S]tatutory interpretation `begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis.2d 211, 612 N.W.2d 659). If the words of the statute exhibit a "plain, clear statutory meaning," without ambiguity, the statute is applied according to the plain meaning of the statutory terms. Id., ¶ 46 (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis.2d 633, 660 N.W.2d 656). However, if a statute is "capable of being understood by reasonably well-informed persons in two or more senses[,]" then the statute is ambiguous, and we may consult extrinsic sources to discern its meaning. Id., at ¶¶ 47-48, 50.

¶ 13 We begin our discussion with the plain language of Wis. Stat. § 968.27(12), which defines "oral communication":

"Oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. "Oral communication" does not include any electronic communication.

We note that the statute does not include every oral statement, but rather, it is restricted to those made in certain circumstances.

¶ 14 The parties offer competing interpretations of Wis. Stat. § 968.27(12). On the one hand, Duchow argues that an "oral communication" is a statement uttered under circumstances in which the speaker has a reasonable expectation that the statement will not be intercepted. On the other hand, the State argues that an "oral communication" is a statement uttered under circumstances in which the speaker has a reasonable expectation of privacy. In the context of the Electronic Surveillance Control Law, which limits the interception and use of oral statements, Duchow's interpretation and the State's interpretation are both reasonable. When comparing wire communication with alleged oral communication, without the competing interpretation asserted by Duchow, we have employed the State's interpretation that an oral communication is one made under circumstances in which the speaker maintains a reasonable expectation of privacy. State v. Smith, 149 Wis.2d 89, 95 n. 4, 438 N.W.2d 571 (1989). Yet, from the face of the statute, one could reasonably argue that it is unclear whether the legislature intended to codify the "reasonable-expectation-of-privacy" test. The statute's ambiguity in this respect permits us to consult extrinsic sources. Kalal, 271 Wis.2d 633, ¶¶ 47-48, 681 N.W.2d 110.

¶ 15 Extrinsic sources include legislative history. Id. The drafting records of the Electronic Surveillance Control Law state that the law "represents Wisconsin implementation of the electronic surveillance portion of [Title III]," the Omnibus Crime Control and Safe Streets Act of 1968.⁷ Drafting File for ch. 427, Laws of 1969, Analysis by the Legislative Reference Bureau of 1969 A.B. 860, Legislative Reference Bureau, Madison, Wis. Although the legislative history of the Electronic Surveillance Control Law is silent on whether the definition of "oral communication" was meant to...