State v. Mosher, 97-3535-CR

Citation584 N.W.2d 553,221 Wis.2d 203
Decision Date30 July 1998
Docket NumberNo. 97-3535-CR,97-3535-CR
CourtCourt of Appeals of Wisconsin
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Everett W. MOSHER, Defendant-Appellant. d

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Michael R. Klos, Assistant Attorney General.

Before EICH, C.J., and VERGERONT and DEININGER, JJ.

VERGERONT, Judge.

The issue on this appeal is whether Everett W. Mosher was subject to custodial questioning by police when he made statements admitting sexual contact with a person under sixteen. The trial court ruled he was not and, therefore, was not entitled to the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the statements were admissible. After this ruling, Mosher entered no contest pleas to two charges of violating § 948.02(2), STATS., sexual contact with a person under sixteen. Mosher appeals the judgment of conviction entered on those two charges and the trial court's order denying his motion to suppress his statements. He contends that, considering all the circumstances, and in particular the fact that the police officer intentionally withheld information from him, he was in custody for Miranda purposes. We agree with the trial court that information not communicated to Mosher is irrelevant to the inquiry, and that Mosher was not in custody when he made incriminating statements. We therefore affirm.

BACKGROUND

Detective Linda Kohlmeyer of the Dane County Sheriff's Department testified as follows at the hearing on Mosher's motion to suppress his statements. She was investigating a sexual assault that occurred on November 14, 1996. The victim told Kohlmeyer that she worked with Mosher at a restaurant in Sauk City, and Kohlmeyer went to the restaurant on November 18, 1996, to speak to Mosher. Kohlmeyer was in plain clothes. She identified herself to Mosher verbally and with her badge and department I.D. as a detective with the Dane County Sheriff's Office. She told Mosher that she wanted to speak to him in reference to an investigation she was conducting and asked him if he would come with her voluntarily to the police department so they could talk about the investigation. Kohlmeyer told Mosher that he was not under arrest. She did not display a gun or handcuffs to him. Mosher said he would come, that he had to go and get his coat, and he went to another area of the restaurant to get some things.

Kohlmeyer drove Mosher to the Sauk Prairie Police Department in her unmarked squad car. She got in the car first and unlocked the passenger's door; then he got in. The doors remained unlocked during the drive. At the police station, they each opened their respective doors at the same time and got out of the car. Inside the police station, Kohlmeyer requested an interview room, and she and Mosher went into the room. They arrived at the police station at 3:20 p.m. and the interview ended at 5:35 p.m. No one was present in the room during the interview besides Kohlmeyer and Mosher.

During the interview, Mosher did not appear to Kohlmeyer to be under the influence of drugs or alcohol, did not indicate that he was in any pain or discomfort, and he did not say he needed food or something to drink. He asked to go to the restroom about 4:10 p.m., and again sometime later. When Mosher went to the restroom, Kohlmeyer waited at the counter in the police department During the interview, Kohlmeyer talked to Mosher about the sexual assault of M.M. on November 14, 1996, and he admitted to sexual contact and sexual penetration. Kohlmeyer did not give Mosher Miranda warnings.

while Mosher walked down a hallway through an open public area to the restrooms on the other side of the building. He passed a door going out of the building on his way to and from the restroom. He could not have left the building by those doors without Kohlmeyer seeing him leave. Kohlmeyer did not know if there was another exit from the building. There was another police officer in the area with Kohlmeyer when Mosher went to the restroom. Mosher took one cigarette break between the two restroom breaks, and Kohlmeyer accompanied him outside on this break.

Before going to speak to Mosher on November 18, 1996, Kohlmeyer ran his name through the NCICB computer and learned that there was an outstanding warrant for his arrest for failure to pay child support. She did not tell Mosher about this warrant before or during the interview. At the end of the interview, Kohlmeyer told Mosher that she was taking him into custody based on the interview for four counts of second-degree sexual assault of a child. She also told him that she had an outstanding warrant for his arrest for nonsupport. She believed he was unaware of the warrant until she told him, and that he could not have seen the order for his arrest, which was in a portfolio on the desk during the interview. Kohlmeyer did not ask Mosher any substantive questions about the sexual assault after she placed him under arrest.

Kohlmeyer testified that she did not give Mosher Miranda warnings before the interview because she believed that he was making a voluntary statement to her. In her mind, he was not free to leave because she knew about the warrant, but she did not communicate that to him and did not believe that her conduct or gestures indicated that he was not free to leave. Kohlmeyer acknowledged that she did everything she could to give Mosher the impression that he was not in custody and was free to leave if he chose to, even though she knew at some point she was going to take him into custody because of the non-support warrant.

Mosher also testified at the hearing. He agreed that he went willingly to the police station with Kohlmeyer. However, he testified that during the interview when she opened a black portfolio on the desk, he saw a document stating "warrant for arrest" with his name on it. When he saw the warrant, he felt that he could not get up and leave. This occurred within the first ten minutes of being in the room. The room was locked. He did not understand that he had the right to remain silent, and, if he had understood that, he would not have made any statements to Kohlmeyer. When he went to the restroom the first time, he knew he could not leave because Kohlmeyer and one or two officers were around the counter. He felt he could not leave while he was on a cigarette break because she was standing within an arm's reach. He did not try to leave during the interview because if the police did not want him to leave, Mosher explained, "they're going to take me down and I did not want that to happen." He made the statements about the sexual contact to Kohlmeyer because he is an honest person and did not have a reason to lie; he did not think he committed any crime.

In response to the court's questions, Mosher testified that he did not know what Kohlmeyer was investigating when he agreed to go with her to the police department, but he went because he had nothing to hide. Mosher also testified that after he saw the warrant on Kohlmeyer's desk, he did not ask her what it was for, although he did not know why she had it. He never asked her if he was free to leave. He described the warrant. His description, however, was inconsistent with the appearance of the order for arrest, which Kohlmeyer produced on rebuttal. This was the document, Kohlmeyer testified, that was in her portfolio during the interview and which she showed Mosher when she placed him under arrest.

The trial court denied the motion to suppress. The court found that Mosher did not see a warrant for his arrest during the interview, explaining the discrepancies between what Mosher testified he saw and the actual

                appearance of the document.  The court concluded, considering the totality of the circumstances, Mosher's statements were voluntary.  The court found Mosher voluntarily accompanied Kohlmeyer to the police station because he believed he had nothing to [221 Wis.2d 210] hide and believed in telling the truth.  The court found Mosher never asked if he was free to leave, or what Kohlmeyer was investigating or why she brought him there, and never stopped answering Kohlmeyer's open-ended questions.  The court found there was no police pressure, no threats, and no psychological coercion other than what "the defendant may have placed upon himself."   The court concluded Kohlmeyer's plan to arrest Mosher based on the warrant was irrelevant to the analysis because it was not communicated to Mosher.  Ultimately, the court concluded Mosher was not in custody for Miranda purposes when he made the inculpatory statements and therefore Miranda warnings were unnecessary before he was placed under arrest.  Miranda warnings were also unnecessary after he was arrested, the court stated, because there was no more questioning
                
DISCUSSION

On appeal, Mosher contends Miranda warnings were required because he was in custody when Kohlmeyer interviewed him. Mosher emphasizes Kohlmeyer's deception--she knew at some point she was going to take him into custody because of the nonsupport warrant, but she intentionally did not disclose this to him--as a critical factor favoring a conclusion that he was in custody.

An officer's obligation to administer Miranda warnings to an individual attaches only where there has been a restriction on the individual's freedom so as to render him or her "in custody." Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). In determining whether an individual was in custody for purposes of Miranda, the court must consider the totality of the circumstances. State v. Gruen, 218 Wis.2d 581, 593, 582 N.W.2d 728, 732 (Ct.App.1998). "The...

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    ...he is not in custody for Miranda purposes, even when there is an outstanding arrest warrant of which he is unaware. Mosher v. State , 584 N.W.2d 553 (Wisc. Ct. App. 1998). An oficer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant......
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