State v. Kelly
| Decision Date | 11 April 2001 |
| Docket Number | 00-1069 |
| Citation | 244 Wis. 2d 286,628 N.W.2d 438 |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62. State of Wisconsin, Plaintiff-Respondent, v. Keith B. Kelly, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Waukesha County: DONALD J. HASSIN, Judge. Affirmed.
Before Brown, P.J., Anderson and Snyder, JJ.
¶1.
Keith B. Kelly appeals from a circuit court order committing him to institutional care pursuant to Wis. Stat. §971.17(1) (1999-2000)1 for a period of forty years. Kelly contends that the court erred when it denied his motion to suppress his statements to the police. Kelly argues that his statements to the police were involuntary because the officers took advantage of his borderline intellectual functioning. Kelly argues that the officers tricked him into believing that a scientific test would reveal whether he was lying. We hold that Kelly's statements to the police were voluntary and thus properly admitted at trial. Therefore, we affirm.
¶2. In January 1997, Detective John Fischer interviewed Kelly regarding some fires that had occurred at Kelly's place of employment, at Kelly's apartment, and at a dumpster. Nine months later, on October 29, 1997, the City of New Berlin police were dispatched to a fire at Kelly's apartment complex, the Brittany Apartments. Detective Gary Blunt spoke with two witnesses who had seen a suspicious person on a bicycle watching fire personnel from about 125 yards away. After conferring with Fischer, Blunt showed a photo array to the two witnesses, one of whom identified Kelly's photo. Knowing that Kelly lived at the Brittany Apartments and that he had been a suspect in other area fires, Blunt decided to speak with Kelly and went to find him at the National Regency elderly facility, Kelly's place of employment.
¶3. Blunt took Officer Mark Hurst along because he knew that Hurst was familiar with Kelly from having had past police contacts with him. Upon arrival at the National Regency, the officers learned that Kelly had punched in at 7:44 a.m.-approximately one hour after the Brittany Apartments fire was reported. The officers found Kelly, identified themselves to him and told him they wanted to talk to him about an investigation they were doing. They then asked Kelly if he would willingly come to the City of New Berlin Police Department for an interview, and Kelly agreed to come.
¶4. In the car on the way to the police department, Kelly stated that he did not have anything to do with starting the fire at his apartment building that morning. The officers had not yet mentioned to Kelly the subject matter of their investigation. Blunt then asked Kelly why he thought the officers were there to talk to him about a fire that occurred at his apartment. Kelly stated that he left for work at approximately 6:40 a.m. that morning, and when he got out of eyesight of his apartment building, he heard sirens and he just assumed that there was a fire at his building. Kelly said he did not at any time stop to watch the fire. He also stated that because the police had talked to him in the past, he assumed that they would be coming to talk to him now.
¶5. After arrival at the police station and before questioning, Blunt told Kelly that he was not under arrest, that he did not have to talk to the police or answer any questions, that he could leave at any time, and that Blunt would drive him back to work if he wanted. Kelly indicated that he was willing to stay and talk to the police. Blunt then asked Kelly if he had lit a match or used a lighter or matches since he woke up that morning or within the past twelve-hour period. Kelly responded that he was absolutely positive that he did not use a lighter or any matches since he woke up that morning, either at his apartment or at his place of employment.
¶6. Blunt then told Kelly that he would be able to tell if he was telling the truth because he could swab Kelly's hands and do some type of test to see if Kelly had used a match or lighter that morning. Using a gunshot residue kit, Blunt proceeded to swab Kelly's hands with plain water, then turned the kit over to Hurst and asked Hurst to leave the room. He told Kelly that he felt that Kelly was not being truthful with him because he had a witness who had observed Kelly watching the fire. Blunt also told him that he felt that Kelly was responsible for starting the fire. Blunt continued, telling Kelly that he thought he was a decent young man and that he did not think Kelly would intentionally try to hurt anyone or kill anyone, but that he felt that Kelly had a problem with starting fires and needed to address this problem. Kelly stated that he did not want to hurt anyone and then confessed to Blunt that he did start the fire at his apartment building that morning.
¶7. At that point, Blunt stopped questioning Kelly and told him that he needed to read him his Miranda rights.2 Blunt used a rights card that he carried on his person, but simplified the warnings so that Kelly could better understand them.3 Kelly told Blunt that he understood his Miranda rights and that he was willing to speak with Blunt. Kelly then admitted to having started the October 29, 1997 fire and several fires in the past, including one on September 30, 1996, at the Brittany Apartments. Regarding the fire on October 29, Kelly told Blunt that he used a lighter to ignite cardboard boxes in a basement storage locker. When asked why he started the fires, Kelly responded that he had uncontrollable urges to start fires. Kelly also said he got excited by watching the fire equipment and hearing the sirens and by the general excitement caused in response to a fire.
¶8. On October 31, 1997, a criminal complaint was filed charging Kelly with three felonies: two counts of intentionally damaging the building of another by means of fire without the other's consent contrary to Wis. Stat. §943.02(1)(a), and one count of recklessly endangering the safety of another under circumstances which show utter disregard for human life contrary to Wis. Stat. §941.30(1).
¶9. The first motion to suppress was addressed by the trial court in March 1998. The issue was limited to whether the record was sufficient to show that the State established by a preponderance of the evidence that not only were Kelly'sMiranda rights read to him, but that he knowingly understood those rights and therefore intelligently waived them. Each side presented expert testimony regarding Kelly's capacity to knowingly and intelligently waive his Miranda rights. Both parties had previously stipulated that the issue of whether Kelly's statements to the police were voluntary would not be tested at the suppression hearing.4 Kelly's attorney, Thomas Brown,5 argued that the reading and explanation of Kelly's Miranda rights, while proper, were "not sufficient ... given [his] circumstances." In essence, Brown argued that while the officers apprised Kelly of his Miranda rights, Kelly was not capable of waiving his Miranda rights because of his mental capacity.6 Kelly's expert, Dr. Kenneth Smail, agreed, testifying that Kelly did not possess the requisite capacity to knowingly and intelligently waive his rights under Miranda.
¶10. The trial court disagreed. The trial court found that there were some "inconsistencies" in Smail's testimony. The trial court found that the standards of the tests that Smail ran on Kelly were not complied with and that the "protocols of [the] test[ing] were not carried out." The trial court went on to say that it was "not satisfied Dr. Smail offered [the court] a sound basis on which to adjudge [Smail's] ability to score this test." The trial court also registered concern that the "test itself measures only the ability to some extent to understand specific words and not concepts," and that at least three times "words were read to [Kelly and] scored upon his ability not to understand the concept but to understand a particular word, whereas in reality, at least on this record, those words weren't even used by Detective Blunt during the course of [apprising Kelly of his Miranda rights]." The trial court concluded that it was "not persuaded" by Smail's testimony.
¶11. The trial court stated that considerations of the "larger sphere of the events might well offer the Court a better and more well-reasoned decision respecting Mr. Kelly's capacity on [the day in question]." Some of these considerations included the trial court's finding that Kelly's tenure at public high school "assisted in particular respect with Mr. Kelly's intellectual capacity to knowingly and intelligently waive" his Miranda rights. In addition, the trial court noted that the State's expert, Dr. Frederick Fosdal, testified that Kelly understood what was going on. Fosdal based his opinion in part on Kelly's ability to understand other concepts such as attorney/client privilege and doctor/patient privilege. The trial court pointed out that Kelly was not a "novice to the criminal justice system with respect to having contact with police officers." The trial court summed up the Miranda test as a question of whether, under the circumstances that attenuated Kelly's confrontation with police on that day, Kelly understood his Miranda rights.
¶12. In its oral decision on June 22, 1998, the trial court refused to suppress Kelly's statements, finding that "the record supports every reasonable inference as well as factually that Mr. Kelly did understand [his] rights as were granted to him under [theMiranda] decision." The trial court held that the State had met its burden and had proven Kelly's understanding of his rights at the time by...
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