State v. Noble, 99-3271-CR.

Decision Date21 June 2002
Docket NumberNo. 99-3271-CR.,99-3271-CR.
Citation646 N.W.2d 38,2002 WI 64,253 Wis.2d 206
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Debra NOBLE, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by Thomas H. Boyd, Karl E. Robinson, Matthew D. Spohn and Winthrop & Weinstine, P.A., St. Paul, Minnesota, and oral argument by Thomas H. Boyd.

¶ 1. WILLIAM A. BABLITCH, J.

The court of appeals reversed the perjury conviction of Debra Noble after concluding that her testimony during a John Doe proceeding should have been suppressed because during the proceeding she was questioned by a law enforcement officer who was not licensed to practice law. The court regarded the officer's conduct as a violation of the unauthorized practice of law statute and concluded that, although neither a constitutional violation nor a statutory violation requiring suppression occurred, suppression was still necessary as a sanction. We disagree. Even assuming that the officer's conduct constituted the unauthorized practice of law, we conclude that suppression is not required in this case. We are not compelled by any statute, constitutional violation, or policy considerations to suppress the testimony in this case. In turn, we conclude that the court of appeals' decision must be reversed, and Noble's perjury conviction must be reinstated.

I

¶ 2. During March and April 1999, City of Prairie du Chien Detective Gerald Ostrander (Ostrander) and the State of Wisconsin Division of Narcotics Enforcement Special Agent David Matthews (Matthews) conducted a narcotics investigation in Prairie du Chien. The investigation culminated in an April 2, 1999 raid of a city tavern, Rowdy's Bar, and the arrests of Bobbie Serrano, Arlene Melvin, and Jean Boland for distribution of cocaine and marijuana. Debra Noble was present at Rowdy's Bar when the raid occurred. Her husband, Dan Noble, was also present at the bar that day, but had left the bar shortly before the police arrived.

¶ 3. Ostrander and Matthews interviewed Debra Noble on April 9, 1999, concerning drug activity at Rowdy's Bar. This interview revealed the following information. On the day of the raid, Dan and Debra Noble went to the bar so that Dan could purchase cocaine from Boland. Dan had been purchasing cocaine from Boland and Serrano for the last two years. Before that time, Dan had been purchasing cocaine from Melvin. On the day of the raid, Dan left the tavern shortly before the police arrived so that he could get some money to pay Boland for the cocaine. Debra Noble used cocaine in the past, but was not a current user. ¶ 4. Around that time, the Crawford County Circuit Court was conducting John Doe proceedings in connection with an investigation of Melvin. Debra Noble (Noble) was subpoenaed to appear in a proceeding on April 23, 1999, based on her statements during the interview.

¶ 5. On that date, Noble appeared before Crawford County Circuit Judge Michael Kirchman. Matthews, Crawford County District Attorney Timothy Baxter, and Jeff Brinkman, Noble's attorney, were also present in the courtroom. At the hearing, Noble was sworn and then informed by Judge Kirchman of her right against self-incrimination, of her right to claim privilege to certain questions, of her right to confer with her attorney, and of the ramifications of any untruthful testimony.1 After a short discussion with Noble's attorney, Judge Kirchman then stated that Matthews would conduct some of the questioning of Noble.2 Matthews was not licensed to practice law.

¶ 6. Matthews asked Noble questions related to their April 9, 1999 conversation. During this questioning, Noble denied making statements to Matthews during the interview about the sale of drugs at Rowdy's Bar and about her husband's drug use.3 Based on this alleged false testimony, Noble was charged with one count of perjury contrary to Wis. Stat. § 946.31(1)(a) (1999-2000).4

¶ 7. Noble moved to suppress the transcript of the John Doe proceeding from her perjury prosecution and to dismiss the complaint against her with prejudice. She claimed that, pursuant to Wis. Stat. § 757.30,5 which prohibits a person from practicing law without a license, it was unlawful for Matthews to represent the state in the proceeding. She contended that, because the state conducted the proceeding in an illegal manner, the transcript must be suppressed because the transcript is the "fruit of an illegal activity" committed by the state.

¶ 8. The Crawford County Circuit Court, Robert P. VanDeHey, Judge, denied the motion. The court noted that Judge Kirchman warned Noble before she testified at the John Doe that, if the testified falsely, she could be criminally prosecuted. Based on this warning, the court concluded that it did not make any difference as to who was asking the questions. The court also noted that the John Doe proceeding was conducted under Judge Kirchman's authority and that he specifically permitted Matthews to ask questions. ¶ 9. A jury later convicted Noble on one count of perjury. Noble appealed this conviction.

¶ 10. The court of appeals, in a split decision, reversed Noble's conviction. See State v. Noble, 2001 WI App 145, 246 Wis. 2d 533, 629 N.W.2d 317

. After rejecting other arguments presented by Noble, the court addressed whether the John Doe transcript should have been suppressed based on the judge's decision to permit the questioning by Matthews. On this issue, the court concluded that Matthews had engaged in the unlawful practice of law, contrary to Wis. Stat. § 757.30, and that the judge should not have permitted such conduct. Id. at ¶¶ 19-23. The question then became "whether there is a remedy for the State's use of an unlicensed person to examine witnesses at the John Doe investigation, and if so, what that remedy should be." Id. at ¶ 24.

¶ 11. The court concluded that some type of sanction was required, noting that the unauthorized practice of law was a significant violation and that, if such conduct was authorized by the state, it would be unlikely that the state would then prosecute such conduct. Id. Therefore, the court determined that "[t]he only effective remedy for the use of unauthorized persons in John Doe investigations is to prohibit the State from profiting from the abuse." Id. at ¶ 27. To this end, the court concluded that, when an unlicensed person examines a witness at a John Doe investigation, the proper sanction would be exclusion of a witness's testimony. Id. at ¶ 30. This sanction, the court noted, "properly balances the right of the State to investigate allegations of criminal conduct with the prohibitions against the unauthorized practice of law." Id. In turn, the court reversed Noble's conviction and remanded for a new trial, with the condition that, if Noble were re-tried, the circuit court would be required to exclude the information obtained by the state's unauthorized practice of law. Id.

¶ 12. Judge Roggensack dissented, partially based on her contention that suppression of the evidence was not an appropriate sanction in this case. Id. at ¶ 34 (Roggensack, J., dissenting). In short, she stated that the majority's decision was "contrary to long-standing precedent," holding that suppression of evidence is applicable "`only where the evidence sought to be excluded was obtained in violation of a constitutional right or a statute that specifically requires suppression of wrongfully or illegally obtained evidence as a sanction.'" Id. at ¶¶ 34-35 (quoting State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999)). The State appealed.

II

¶ 13. The sole issue on review is whether testimony provided by Noble during the John Doe proceeding should be suppressed from her subsequent perjury prosecution based on the allegation that the state abused the proceeding by permitting her examination to be unlawfully conducted by Matthews, a state agent who was not authorized to practice law. Noble contends that such abusive conduct warrants suppression because such conduct constitutes a violation of her constitutional right to due process. Alternatively, she argues that, even if a constitutional violation did not occur, suppression is still required because it is an appropriate sanction for such abusive conduct. We conclude that the suppression of Noble's testimony is not required in this case. It is not required because Matthews' examination of Noble during the John Doe proceeding did not amount to either a constitutional violation or a statutory violation for which suppression is provided as a remedy. We find no other basis for suppressing this evidence. As a result, we disagree with the court of appeals' decision to suppress Noble's testimony, and accordingly, we reverse the court's decision overturning Noble's conviction.

III

¶ 14. We assume, for purposes of this case, that Matthews' conduct constituted the unauthorized practice of law, contrary to Wis. Stat. § 757.50. Thus, the question becomes whether the testimony provided by Noble should be suppressed based on the state's use of Matthews during the John Doe proceeding. Recently, we noted that "[s]uppression is only required when evidence has been obtained in violation of a defendant's constitutional rights or if a statute specifically provides for the suppression remedy." State v. Raflik, 2001 WI 129, ¶ 15, 248 Wis. 2d 593, 636 N.W.2d 690 (citation omitted). In this case, Noble concedes that her testimony was not obtained in violation of a statute that specifically provides suppression as a remedy. Instead, she contends that this testimony was obtained in violation of her constitutional right to procedural due process. Noble asserts that this violation is evidenced by the conduct of the...

To continue reading

Request your trial
11 cases
  • State v. Popenhagen
    • United States
    • Wisconsin Supreme Court
    • 4 Junio 2008
    ...right was violated or a statute specifically authorized suppression as a remedy for the statutory violation. See, e.g., State v. Noble, 2002 WI 64, ¶ 13, 253 Wis.2d 206, 646 N.W.2d 38 (concluding that suppression of Noble's testimony was not required because the violation the John Doe proce......
  • State v. Scull
    • United States
    • Wisconsin Supreme Court
    • 5 Marzo 2015
    ...v. Artic, 2010 WI 83, ¶ 65, 327 Wis.2d 392, 786 N.W.2d 430 ; State v. Knapp, 2005 WI 127, ¶ 79, 285 Wis.2d 86, 700 N.W.2d 899 ; State v. Noble, 2002 WI 64, ¶ 31, 253 Wis.2d 206, 646 N.W.2d 38 ; Eason, 245 Wis.2d 206, ¶ 31 n. 10, 629 N.W.2d 625 ; State v. Ward, 2000 WI 3, ¶ 47, 231 Wis.2d 72......
  • In the Matter of a Doe, 2003 WI 30 (Wis. 5/1/2003)
    • United States
    • Wisconsin Supreme Court
    • 1 Mayo 2003
    ...to Wis. Stat. § 808.03. By contrast, a John Doe proceeding is commenced by a judge, who acts as the tribunal. See State v. Noble, 2002 WI 64, 253 Wis. 2d 206, 646 N.W.2d 38. Therefore, an order issued by a judge in a John Doe proceeding is not a judgment or order of a circuit court. Washing......
  • In Matter of John Doe Proceeding
    • United States
    • Wisconsin Supreme Court
    • 1 Mayo 2003
    ...to Wis. Stat. § 808.03. By contrast, a John Doe proceeding is commenced by a judge, who acts as the tribunal. See State v. Noble, 2002 WI 64, 253 Wis. 2d 206, 646 N.W.2d 38. Therefore, an order issued by a judge in a John Doe proceeding is not a judgment or order of a circuit court. Washing......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT