State v. Moats

• Decision Date: 28 June 1990
• Docket Number: No. 88-0431-CR,88-0431-CR
• Citation: 457 N.W.2d 299,156 Wis.2d 74
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Roy C. MOATS, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 299

457 N.W.2d 299

156 Wis.2d 74

STATE of Wisconsin, Plaintiff-Respondent, v. Roy C. MOATS, Defendant-Appellant.

No. 88-0431-CR.

Supreme Court of Wisconsin.

Argued Sept. 8, 1989.

Decided June 28, 1990.

Terry Evan Williams, argued and Williams Law Office, Delavan, for defendant-appellant.

Christopher G. Wren, Asst. Atty. Gen., argued, with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent.

STEINMETZ, Justice.

The issue in this case is whether a constitutionally tainted confession may provide the sole basis at a preliminary hearing for binding over for trial a criminally charged defendant. If unconstitutionally obtained evidence is the sole evidence used at the preliminary examination and the defendant is bound over for trial, the purpose of the hearing is not affected. We hold that the unconstitutionally obtained confession can be used, as here, at the preliminary examination.

This issue was certified to this court by the court of appeals under sec. 809.61, Stats., and we accepted. Subsequently, by order dated December 15, 1989, we took jurisdiction over the six noncertified issues in this case. The noncertified issues are decided based on the parties' briefs filed in the court of appeals.

The defendant appeals from interlocutory orders and a judgment of conviction on one of two counts charged of first degree sexual assault. His sentence of 15 years in prison was entered on June 8, 1987, in the circuit court for Walworth county, Honorable James L. Carlson, Presiding.

This case is unique in that Moats raises a fifth amendment, rather than a fourth amendment challenge to the use of constitutionally tainted evidence in a preliminary hearing. ¹ The crux of Moats' argument is that a constitutionally tainted confession is not sufficient evidence with which to find probable cause at a preliminary examination and to justify his bindover for trial.

The facts are undisputed. In August and September, 1985, Roy C. Moats, the defendant, stayed with C.C. and her five-year-old daughter, B.J.C., in Whitewater. While there he helped care for B.J.C. and stayed with B.J.C. while C.C. was in the hospital giving birth to her second child. Two or three days after she returned home Moats left.

On October 8, 1985, C.C. spoke to Officer Gary Sterling of the Whitewater Police Department. He arranged for the child to be taken to Whitewater Family Practice where she was examined by Dr. Mark Dickmeyer on October 9, 1985. The same day B.J.C. gave a videotaped statement to Officer Sterling and a Walworth County Department of Social Services worker, Theresa Hanson, at the district attorney's office. The child alleged that Moats had sexually assaulted her. Subsequently, a criminal warrant and complaint were issued charging Moats with two counts of first degree sexual assault, and he was then taken into custody.

After receiving the Miranda ² warnings from Officer Sterling, Moats said: "Maybe I better talk to an attorney." Officer Sterling ended his interrogation at that point. Moats was then transferred to the Walworth county jail where he was further questioned by another officer who was unaware that the defendant had said he wished to speak with an attorney. Moats testified he thought the second officer was his attorney. The defendant, according to doctors who examined him and testified at his competency hearing, is borderline retarded and cannot read but was determined to be competent to stand trial.

Officer Swart, the second officer to talk to the defendant, was the only witness at the preliminary hearing held before the Honorable Robert D. Read. The defendant's second statement to Officer Swart was accepted into the record and constituted the only evidence offered against the defendant. In the second statement, the defendant admitted having sexually abused the child.

The defendant was bound over for trial. At a subsequent evidentiary hearing held April 2, 1987, a defense motion to suppress the confession as violative of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), was entertained and denied.

The state did not introduce defendant's statements for use in its case-in-chief, and the defendant did not testify at trial. In its brief and argument to this court, the state conceded that the defendant sufficiently invoked his right to an attorney and that the subsequent questioning of the defendant violated Edwards. The state, however, does not concede that the statement of the defendant was involuntary.

We acknowledge at the outset that the state requested that this court also rule on the court of appeals decision in State v. Sorenson, 135 Wis.2d 468, 400 N.W.2d 508 (Ct.App.1986) rev'd on other grounds, 143 Wis.2d 226, 421 N.W.2d 77 (1988), which held that the use of evidence at a preliminary examination in violation of the statutory rules of evidence required that the trial and resulting conviction be declared a nullity and the case be remanded for a new preliminary examination. We decline to rule on Sorenson, however, because the use of erroneously admitted evidence under the statutory rules of evidence to gain bindover at the preliminary examination stage and its accompanying remedy are not at issue in this case. This issue has not been briefed, and we prefer to rule when the issue is directly before us. The court is also concerned that if it rules without briefs, it may be adding to interlocutory appeals. If after a fair trial a defendant is convicted which would make inconsequential the evidentiary errors in the preliminary examination, the defendant's attorneys would believe it necessary to move for discretionary appeal before the trial would begin or forego the errors at the preliminary. This may cause an administrative problem for the court of appeals, and it is preferable that these issues be fully briefed and argued before deciding them.

In the case now before us, Moats does not allege that admitting his statements at the preliminary hearing violates any of the rules of evidence. Moats appeals the use of the evidence only as to its unconstitutionality. The gist of his argument is that:

[To rule] that the confession's admission was proper would be to grant the Rules of Evidence a position of supremacy above Amendments 5, 6, and 14 of the United States Constitution and Article 1, Secs. 1, 7 and 8 of the Wisconsin Constitution. As the Wisconsin Constitution controls the Statutes, and the United States Constitution controls both, constitutionally guaranteed rights may not be subordinated to statutory rules. The rules of evidence are owed no greater deference than are fundamental constitutional rights.

This reasoning is not persuasive.

The right to a preliminary hearing is solely a statutory right. This court has stated that " '[t]he right to such an examination stems purely from statute and is not considered a constitutional right.' " State v. Dunn, 121 Wis.2d 389, 394, 359 N.W.2d 151 (1984) (quoting State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63 (1967)). The preliminary examination is intended to be a summary proceeding used to determine if there is probable cause to believe a felony has been committed and probably committed by the defendant. Section 970.03(1), Stats. See also State v. Hooper, 101 Wis.2d 517, 305 N.W.2d 110 (1981).

The preliminary hearing is not a trial. The presiding judge therein is called upon only to determine the plausibility of a witness's story and whether, if plausible, the evidence would support bindover. " ' "The preliminary hearing ... is not the proper forum to debate and determine issues as to credibility and weight of evidence once essential facts as to probability have been established." ' " Id. at 545, 305 N.W.2d 110. (Citations omitted). Credibility and weight of the evidence are left exclusively to the jury to determine at trial. Dunn, 121 Wis.2d 389, 359 N.W.2d 151.

The appellate review of the bindover is de novo. "[T]his court may examine the factual record ab initio and decide as a matter of law whether the evidence constitutes probable cause." State v. Williams, 104 Wis.2d 15, 22, 310 N.W.2d 601 (1981).

The Wisconsin Rules of Evidence found in chs. 901 through 911, Stats., apply in preliminary examinations. Mitchell v. State, 84 Wis.2d 325, 267 N.W.2d 349 (1978). No special exceptions to these rules exist to otherwise allow for admissibility at a preliminary hearing. See Id. (Refusal by the court to adopt a rule permitting the admission of hearsay evidence at the preliminary hearing.)

The statutory rules of evidence set forth in chs. 901 to 911, Stats., provide the sole guidelines for exclusion of evidence at the preliminary hearing. If the statutory rules of evidence do not exclude the statement at the preliminary examination, a defendant cannot seek exclusion for any other reason.

This conclusion is based on the clear language of sec. 971.31(5)(b), Stats. That statute provides:

In felony actions, motions to suppress evidence or motions under ss. 971.23 to 971.25 or objections to the admissibility of statements of a defendant shall not be made at a preliminary examination and not until an information has been filed.

The defendant's statement did not qualify for any exclusions under the statutory rules of evidence. Section 971.31(5)(b), Stats., clearly states that objections to the admissibility of a defendant's statements, which include a constitutionally tainted confession, shall not be raised until later in the prosecutorial process, i.e., not until the point after which probable cause to bindover in the preliminary examination has been found such that an information may be drafted.

Thus, sec. 971.31(5)(b), Stats., effectively prevents the trial court from excluding evidence presented at the preliminary hearing unless that evidence could not be admitted under the Wisconsin Rules of Evidence set forth in chs. 901 to 911. At a preliminary hearing, then, the rules of evidence do...