State v. Esser, 91-1437-CR

• Decision Date: 15 January 1992
• Docket Number: No. 91-1437-CR,91-1437-CR
• Citation: 166 Wis.2d 897,480 N.W.2d 541
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jay J. ESSER, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 541

480 N.W.2d 541

166 Wis.2d 897

STATE of Wisconsin, Plaintiff-Respondent, v. Jay J. ESSER, Defendant-Appellant. ^d

No. 91-1437-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 18, 1991.

Opinion Released Jan. 15, 1992.

Opinion Filed Jan. 15, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Chandek, Brookfield.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen. and David J. Becker, Asst. Atty. Gen.

Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.

NETTESHEIM, Presiding Judge.

Following his no contest plea, Jay J. Esser was convicted of homicide by intoxicated use of a motor vehicle pursuant to sec. 940.09(1)(a), Stats. The issue on appeal is whether the trial court erred in refusing to suppress a series of statements given by Esser following a motor vehicle accident in which Esser was the driver. ¹ We affirm the trial court's rulings denying Esser's request to suppress his statements. We will recite the undisputed and relevant facts as we address each set of Esser's statements.

1. Statements at the Scene of the Accident

During the early morning hours of December 31, 1988, following a party in Wind Lake, Wisconsin, Esser was driving back to his residence in the city of New Berlin. Esser's friend, Mark Thomas, was a passenger. A second vehicle, occupied by others who were also at the party, was following the Esser vehicle. As Esser rounded a corner on College Avenue in the city of Muskego, his car slid, went off the roadway and hit a telephone pole. Thomas, the passenger, was killed in the accident. Esser was injured.

City of Muskego police officer Todd Nelson responded to the accident scene. He asked Kathy Shanahan, the driver of the second vehicle, which person was driving the Esser vehicle. Shanahan responded that Esser was driving. Officer Nelson then asked Esser if he was driving. Esser responded, "I think so." Officer Nelson had no further conversation with Esser at the scene of the accident. ²

Esser contends that this statement was taken in violation of Miranda ³ and should have been suppressed. Miranda, however, first requires custody. "The court in Miranda dealt with principles of protection of the 'privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.' " State v. Clappes, 117 Wis.2d 277, 284, 344 N.W.2d 141, 145 (1984) (quoting Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966)).

In Clappes, the defendant was taken to a hospital emergency room for treatment following an automobile accident. While in the emergency room receiving treatment the defendant was questioned without prior Miranda warnings. Despite the defendant's medical condition, the supreme court observed that:

Clappes was not questioned in a coercive atmosphere of isolation created by the police giving rise to over-bearing compulsion. The circumstances were public with witnesses present and no apparent police trickery or deception was used. The questions asked related to police investigation of a double fatal accident identifying the parties and circumstances, not a custodial verbal search intending to lead to the defendant's self incrimination. Police station interrogation carries a strong presumption of custody, although even that can be voluntary on the defendant's part; however, that strong custodial presumption does not exist in a public place, with others present as witnesses, without an arrest having been made.

Id., 117 Wis.2d at 287, 344 N.W.2d at 146-47 (citation omitted).

We conclude that this case is controlled by Clappes. While Esser's injuries certainly limited his mobility and caused him distress, these conditions were not the result of any police conduct. Nor was Esser under arrest or in isolation; the questioning occurred in a public setting with other witnesses and friends present; and no police trickery or deception was used. Officer Nelson simply asked one of the more obvious and expected questions upon arriving at the scene an accident--"who was driving?" The Miranda Court stated, "General on-the- scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding." Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30.

Officer Nelson's questioning of Esser was not custodial interrogation. The trial court correctly denied this aspect of Esser's motion to suppress.

2. Statements at the Hospital

a. Evidentiary Fact Finding

Later, at the scene of the accident, as Esser was being placed into an ambulance, Officer Nelson arrested Esser for operating a motor vehicle while intoxicated. The officer then traveled to the hospital to question Esser. Upon arriving at the hospital, Officer Nelson found Esser in the emergency room receiving treatment. Describing his delivery of the Miranda rights to Esser at this time, Officer Nelson testified, "I immediately read to him from a police department Miranda card his constitutional rights." The officer did not further specify as to what rights were actually read to Esser. Nor did the state introduce into evidence the Miranda card used by Officer Nelson.

Esser contends that this evidence is insufficient to constitute compliance with Miranda. The trial court expressed its concern that the evidentiary record did not reflect "a specification as to what those rights are." However, the court concluded, nonetheless, that the state had established beyond a reasonable doubt that Officer Nelson properly advised Esser of the requisite Miranda warnings.

We first address the trial court's factual determination that Officer Nelson properly advised Esser of his Miranda rights. A trial court's findings of evidentiary or historical facts will not be overturned unless they are clearly erroneous. Section 805.17(2), Stats. State ex rel. McMillian v. Dickey, 132 Wis.2d 266, 280, 392 N.W.2d 453, 458 (Ct.App.1986).

In Phelps v. Duckworth, 757 F.2d 811 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985), the federal district court found that a suspect had been properly advised under Miranda where the testimony revealed only that the defendant was "read his ... rights." Id. at 814. The court concluded that to hold otherwise "would contradict reason and common sense." Id. at 816. ⁴

We find Phelps persuasive. Miranda is a legal doctrine known even to many lay persons. The phrase "Miranda rights" conjures up the well-known litany of rights which many citizens could recite verbatim. From these facts, we conclude the trial court was permitted to draw the inference that Officer Nelson fully and properly advised Esser of the Miranda rights.

A permissive inference allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one. Muller v. State, 94 Wis.2d 450, 475, 289 N.W.2d 570, 582 (1980). Such an inference is valid where there is a rational connection between the proven facts and the inferred facts. State v. Nixa, 121 Wis.2d 160, 166, 360 N.W.2d 52, 56 (Ct.App.1984). Here, such a rational connection exists between Officer Nelson's testimony and the trial court's inference drawn therefrom. We agree with Phelps that it would be unreasonable and contrary to common sense to conclude that a police officer means something other than the well-understood Miranda litany when testifying that a suspect was advised of the Miranda rights from a police department Miranda card. The trial court's finding is not clearly erroneous.

b. Constitutional Fact

Although the trial court's factual determination survives the clearly erroneous test, we must further consider whether Officer Nelson's abbreviated testimony satisfies the constitutional requirements of Miranda under the applicable burden of proof. The application of constitutional principles to the facts of a case is subject to independent appellate review. McMillian, 132 Wis.2d at 280, 392 N.W.2d at 458.

We first address the parties' dispute as to the applicable burden of proof in a Miranda hearing. Esser contends that the standard is the "beyond a reasonable doubt" standard which has been recited in numerous Wisconsin appellate cases over the years since Miranda. See, e.g., Micale v. State, 76 Wis.2d 370, 371, 251 N.W.2d 458, 459 (1977). Although acknowledging this authority, the state counters that the proper burden of proof is the "preponderance of the evidence" standard pursuant to Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). We agree with the state.

In Connelly, the United States Supreme Court reversed the Colorado Supreme Court's determination that the applicable burden of proof under Miranda was the "clear and convincing" standard. Connelly, 479 U.S. at 167-68, 107 S.Ct. at 521-22. Relying on its earlier decision in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), the Supreme Court stated: "Whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence." Connelly, 479 U.S. at 168, 107 S.Ct. at 522.

Lego does retain authority unto the states to adopt a higher standard pursuant to their own law. Lego, 404 U.S. at 489, 92 S.Ct. at 626. However, no Wisconsin case which speaks of the "beyond a reasonable doubt" Miranda standard has ever adopted such standard under Wisconsin state law. Whether such a burden should be adopted is properly left to our supreme court in the appropriate case. Here, Esser makes no claim under color of state law....