State v. Edwardsen, 85-2317-CR

• Decision Date: 12 November 1986
• Docket Number: No. 85-2317-CR,85-2317-CR
• Citation: 400 N.W.2d 18,135 Wis.2d 208
• Parties: STATE of Wisconsin, Plaintiff-Respondent, * v. Charles D. EDWARDSEN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 18

400 N.W.2d 18

135 Wis.2d 208

STATE of Wisconsin, Plaintiff-Respondent, ^* v. Charles D. EDWARDSEN, Defendant-Appellant.

No. 85-2317-CR.

Court of Appeals of Wisconsin.

Argued July 10, 1986.

Opinion Released Nov. 12, 1986.

Opinion Filed Nov. 12, 1986.

Donna L. Hintze, Asst. State Public Defender, for defendant-appellant.

Sharon Ruhly, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on briefs.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

The defendant in this criminal case moved to suppress statements made to police involving cocaine trafficking on grounds that the police promised his statements would not be used against him in court. The trial court denied the motion, holding that, based on the record, the defendant was not induced by a promise. The state claims that we are bound by this since it is a finding of fact. We disagree. It is a finding of constitutional fact, reviewable ab initio. Reviewing the totality of the circumstances, we hold that the defendant believed there was a promise and his statements were induced by this belief. Therefore, we reverse and remand.

Charles Edwardsen entered no contest pleas to charges of battery to a police officer and possession of a controlled substance with intent to deliver. His pleas followed a denial of a motion to suppress statements made to police.

Before reciting the facts, this court notes that the statements in question were surreptitiously tape recorded by police, which is another issue, but one which we will not reach. This court, as well as the trial court, was therefore able to hear the conversation. Following are the pertinent facts gleaned from these recordings and other parts of the record.

Edwardsen was a passenger in a car driven by his niece. His niece was stopped by a town constable for speeding. Subsequently, Edwardsen and the constable were embroiled in a fight. As a result, both Edwardsen and his niece were placed under arrest. The auto was towed to the Kenosha County Safety Building where it was impounded and searched. The search revealed two ounces of cocaine.

Deputies Smith and Klawitter subsequently interviewed Edwardsen about the cocaine. They identified themselves and advised Edwardsen of his Miranda rights. The defendant signed a waiver of constitutional rights form and Deputy Smith, in particular, then began to ask questions which were taped without Edwardsen's knowledge.

The tapes reveal the following: Deputy Smith wanted to know Edwardsen's supplier. Edwardsen, however, expressed concern about his niece. He said she had had no part in this and wanted to keep her out of it. Deputy Smith responded that if both Edwardsen and his niece cooperated fully, perhaps something could be done about both of their charges.

Edwardsen then expressed concern not about his own safety, but the safety of his niece. Officer Smith responded that if the "feds" were interested enough it might be possible to get into the federal witness protection program. Smith underscored, however, that the "feds" would not be interested just in Edwardsen's two ounces of cocaine. They would be very interested, however, if Edwardsen could lead them to a multi-kilo source.

At this point, the conversation took the following turn.

EDWARDSEN: O.K. How far is this going right here, we're talking about between you and him, right? It's between you and him [the other deputy] and me. I got your word on that?

DEPUTY SMITH: You got it.

EDWARDSEN: I got your word on that. I mean, if later on I plead not guilty, what we're talking about never existed, man. [Pause] I just say that I don't know, it's her car and I was just a passenger in it.

After he said, "if later on I plead not guilty, what we're talking about never existed, man," Edwardsen claims that Deputy Smith nodded his head in agreement. Deputy Smith testified that he did not recall this but no one disputes that there was a significant pause after the statement was made.

From this exchange comes Edwardsen's argument. Edwardsen claims that all statements made subsequent to this exchange were involuntary because they were induced by the officer's promise to keep the statements confidential. According to Edwardsen, the understanding was that if he gave information about his involvement with his source, that information would not leave the room except to help make a case against the source; it would not be used against him.

As to what was said, the state holds no dispute. As to the meaning of what was said, the state disagrees. This brings us to our first issue which is: What is the applicable standard of review for this court? The state acknowledged at oral argument that whether a defendant's confession is voluntary is a legal question, independently determined by an appellate court. State v. Woods, 117 Wis.2d 701, 715-16, 345 N.W.2d 457, 465 (1984). The state further acknowledged that the perspective from which the statements must be viewed is that of the defendant, not the prosecutor. In other words, whether a confession was voluntary requires a determination of the defendant's state of mind. United States v. Harris, 301 F.Supp. 996, 999 (E.D.Wis.1969). Therefore, if the defendant believes that a coercive promise has been made, even though no such promise has actually been made, and his plea is induced by this belief, it is an involuntary and void plea. United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508, 516 (E.D.N.Y.1967).

The state claims, however, that whether defendant's state of mind was such that he believed a coercive promise was made is a question of fact. Since questions of fact are subject to the clearly erroneous rule under sec. 805.17(2), Stats., and since the trial court found that defendant did not believe a promise was made, the state concludes that we are bound by the trial court's determination.

Central to the state's argument is the trial court's discussion of what the state believes are underlying "historical" facts. The trial court found the following: (1) While the defendant says he believed there was a promise not to use the statements for prosecutive purposes, there are portions of the tape from which a trier of fact could infer that he was exacting only a promise to keep his supplier from knowing that he was the informant. (2) Outside the presence of police officers, Edwardsen made the statement to his niece, transcribed surreptitiously on tape, that should the case go to trial, it would be the officer's word against his. The trial court found this to be a clear indication that he knew the police would use his statements against him if he pled not guilty. (3) Edwardsen had many prior convictions and knew the system well. He knew any statements he made could be used against him in court.

The state maintains that these are findings of historical fact regarding whether the defendant believed he had obtained a promise to keep the statements from being used against him. The state concludes that since these findings have support in the record, they have a presumption of correctness and we may not overturn them.

We reject the state's argument concerning the applicable standard of review. Whether defendant "believed" he had exacted a promise by police not to use the statements against him is a question of "constitutional fact." This is so because the ultimate determination is whether the defendant was induced to make a statement that he might not have otherwise voluntarily made. What the defendant "be...