State v. Harris

Citation544 N.W.2d 545,199 Wis.2d 227
Decision Date29 February 1996
Docket NumberNo. 93-0730-CR,93-0730-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Dirk E. HARRIS, Defendant-Appellant-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

Appeal from Circuit Court, Milwaukee County, William D. Gardner, Judge.

For the defendant-appellant-petitioner there were briefs and oral argument by William O. Marquis, Milwaukee.

For the plaintiff-respondent the cause was argued by Gregory Posner-Weber, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

GESKE, Justice.

This is a review of a published decision of the court of appeals, affirming the conviction of Dirk Harris for first-degree murder and armed robbery. 1 The court of appeals held that physical evidence recovered as a result of a statement taken after Harris had invoked his right to have counsel present during interrogation could be used in the prosecution's case-in-chief. We conclude that the circuit court committed error by not excluding physical evidence proximately derived from a violation of the bright-line rule articulated by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which bars all uncounseled police-initiated interrogation after invocation of the right to counsel. However, we hold that the error in this case was harmless, and we therefore affirm the judgment of conviction.

FACTS

The body of Dennis Owens was discovered at approximately 4:15 a.m. on December 4, 1988. He died from multiple gunshot wounds to the head and chest, fired at close-range from a .22 caliber gun. A witness saw a gray Pontiac identified as belonging to the victim leaving the area. The next day, Harris was seen driving Owens' car. He also used Owens' credit card to purchase a bracelet. Harris's mother, Barbara Harris, told a co-worker that she was afraid that her son was involved in the murder because he had showed her identification belonging to the dead man. The police interviewed Barbara Harris and recovered the victim's identification and license plates from her trash. She told police that after her son called her at work and told her he needed money to leave town, she took him $180. The police arrested James Malone, who told them that Harris Public Defender Kathy Stilling, who had represented Harris on a previous matter, recognized his description in news reports of the incident and called the police station in Amarillo where Harris was being held. Harris returned her call and, after he indicated that he wanted her to represent him, attorney Stilling advised him that it would not be in his best interests to initiate conversation with law enforcement personnel or anyone else except his lawyer. Harris indicated that he understood and would not talk to anyone. Attorney Stilling then asked Harris to put the accompanying officer on the phone and told the officer that she represented Harris and that he had indicated his desire not to make any statements to Amarillo or Milwaukee authorities outside the presence of counsel. Harris then got back on the phone and Stilling heard him repeat that instruction to the officer. Stilling then called Assistant District Attorney Jackson in Milwaukee and informed him that she represented Harris and that he didn't wish to make any statements in the absence of counsel. She also called Milwaukee police detective Sucik who was working on the case and told him the same thing.

committed the murder. Harris was arrested in Amarillo, Texas, on December 6, 1988.

A criminal complaint and felony warrant were issued in Wisconsin on December 7, 1988, charging Harris with first-degree murder and armed robbery. Following his arraignment that same day in Amarillo, Harris again informed the Amarillo police that he had made contact with his lawyer in Milwaukee and that he would make no statements to anyone without his lawyer being present. This information was recorded in the police incident report.

Milwaukee police detectives Sucik and Blazer were assigned to fly to Amarillo to accompany Harris back to Milwaukee. Before leaving Wisconsin, Sucik informed Blazer of the content of his conversation with attorney Stilling. On the morning of December 8, 1988, the two detectives arrived at the Amarillo police station where they reviewed police reports including the one containing the information that Harris had stated that "he would make no statements to anyone without his lawyer being present." After reviewing these reports, the detectives asked that Harris be brought to them.

At the suppression hearing, the detectives testified that they merely wanted to see Harris to advise him of the charges and to assess his demeanor for security reasons because they were responsible for escorting him back to Milwaukee on public carriers. Blazer testified that "armed with the knowledge that an attorney was representing him ... I did not think that we would be able to talk to [Harris]." Despite that belief, Blazer admitted that he initiated the ensuing "conversation" that lasted somewhere between 45 minutes and an hour. No Miranda warnings were given. 2 During the conversation, Blazer mentioned that he had spoken with Harris's mother. When Harris responded by asking what his mother had said, Sucik cautioned him about "getting into the offense itself," because of his request for an attorney. However, Sucik later left the room and Blazer testified that he continued the conversation by informing Harris that certain property of the deceased had been obtained from his mother's home and that people were in custody in Milwaukee in relation to the crime. Blazer stated that he had possibly even told Harris that his fingerprints had been found on the victim's license plates. When he was told that Malone had been arrested and charged with the murder, Harris responded that Malone "had nothing to do with it" and, at that point, indicated that he wanted to tell the detectives about the offense. Then Blazer recited the Miranda warnings and Harris said he was willing to waive his right to an attorney. Harris made a confession in which he admitted killing Owens and told the detectives how and where he had disposed of the gun he used.

After hearing Harris's motion to suppress, the circuit court ruled that the "conversation" amounted to interrogation which had been initiated by the police. Further, it found that the "detectives clearly overreached in their zeal." The court acknowledged that state-initiated communication The circuit court denied Harris's later motion to suppress the gun and other physical evidence recovered as a result of his statement. Relying primarily on a federal case from the Sixth Circuit, 4 the court concluded that nontestimonial physical evidence is admissible in the State's case-in-chief if the statement from which it was derived was voluntary.

                after Harris had asserted his right to counsel triggered the per se exclusion of his subsequent statement according to Edwards and Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (extending the Fifth Amendment-based Edwards proscription of further interrogation to the right to counsel [199 Wis.2d 235] under the Sixth Amendment). 3  However, the circuit court went on to find that the statement Harris made after he was read his Miranda rights was based on a voluntary and knowing waiver which had not been coerced.  It therefore concluded that although the statement must be suppressed in the State's case-in-chief, it could be used for impeachment purposes if Harris chose to testify
                

Harris did not testify at his trial and his statement was not introduced. The prosecution did present evidence that the murder weapon, .22 caliber ammunition and the victim's keys had been recovered from a sewer located approximately two blocks from Harris's home. They also presented ballistic evidence that matched the gun to spent cartridges found at the crime scene. No identifiable prints were found on the gun, box of cartridges or keys. The jury returned a verdict of guilty on both counts. Harris appealed.

The court of appeals concluded that the circuit court had not erred in admitting the challenged evidence and affirmed Harris's conviction. Harris, 189 Wis.2d at 165, 525 N.W.2d 334. It found that the circuit court had correctly concluded that Harris's confession was voluntary and held that "derivative, non-testimonial evidence is admissible when its discovery results from a suppressed, voluntary confession." Harris, 189 Wis.2d at 177, 525 N.W.2d 334. This court subsequently granted Harris's petition for review.

ISSUES

The issues presented by this case are of first impression in Wisconsin. 5 (1) Is it

                constitutional error [199 Wis.2d 237] to admit, in the State's case-in-chief, physical evidence discovered solely through a statement taken in violation of the Edwards proscription against police-initiated interrogation following a suspect's invocation of the right to counsel under the Fifth Amendment?  (2) If so, is such error subject to harmless error analysis?   Resolution of these questions requires constitutional interpretation and application of constitutional principles to facts as established by the circuit court.  Both are tasks which this court undertakes without deference to the courts below.  State v. Jones, 192 Wis.2d 78, 92-3, 532 N.W.2d 79 (1995)
                
APPLICABILITY OF THE EXCLUSIONARY RULE

In Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), the Supreme Court fashioned a set of procedural guidelines designed to protect a suspect's rights under the Fifth Amendment from the "inherently compelling pressures" of custodial interrogation. The Court held that the prosecution was barred from using any statements obtained through custodial interrogation unless it could "demonstrate[ ] the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384...

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