State v. Quigley, s. 2015AP681–CR

• Decision Date: 15 June 2016
• Docket Number: Nos. 2015AP681–CR,2015AP682–CR.,s. 2015AP681–CR
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Karl L. QUIGLEY, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

370 Wis.2d 702

883 N.W.2d 139

STATE of Wisconsin, Plaintiff–Respondent,

v.Karl L. QUIGLEY, Defendant–Appellant.

Nos. 2015AP681–CR

2015AP682–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 25, 2016.

Opinion Filed June 15, 2016.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John R. Breffeilh, assistant state public defender of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Warren D. Weinstein, assistant attorney general, and Brad D. Schimel, attorney general.

Before NEUBAUER, C.J., REILLY, P.J., and HAGEDORN, J.

NEUBAUER

, C.J.

¶ 1 Karl L. Quigley appeals from a judgment entered after he pled no contest to two criminal complaints charging him with various sex offenses against P.R., a minor female. Quigley contends that statements he gave to a detective should have been suppressed because they were made while in custody without the benefit of Miranda¹ warnings. Quigley also contends that his right against self-incrimination was violated when, after he was compelled to make a statement to his probation agent, the police reinterviewed P.R. We disagree with the former, but agree with the latter. The State concedes that this error, if we so find, requires that the entire plea to both criminal complaints be set aside. Therefore, we reverse the judgment.

BACKGROUND

Quigley's Initial Encounter with Police at McDonald's

¶ 2 Quigley was charged with nine felonies under Kenosha County case No. 2012CF360. The charges stemmed from a complaint made on March 14, 2012, by a manager at a McDonald's restaurant that Quigley was acting inappropriately with P.R. Police Officer Willie Hamilton, along with two other officers, responded to the scene and spoke with the manager who told him that he saw P.R. place her legs on Quigley and her head on his shoulder.² The manager was concerned because she did not think that Quigley was P.R.'s father. Hamilton questioned Quigley and P.R. separately. Hamilton saw a bag with two cellular phones inside; he asked and was given consent to look at the phones. Hamilton discovered that one of the phones—Quigley and P.R. did not agree on who owned which phone—had nude photographs and videos of P.R.³ Hamilton asked Quigley about the nature of his relationship with P.R., and he said that “he loved her.”⁴ Quigley “knew it was wrong,” and “he even told her mother if she was old enough, he would marry her.” Hamilton told Quigley that “[h]e needed to come to the police department to speak with a detective about the case.” Quigley agreed to speak with a detective. Hamilton patted Quigley down and placed him uncuffed in the back of his squad car, which could not be opened from the inside. Hamilton brought Quigley to the police station and had him wait in a waiting area while Hamilton spoke with his supervisor. Hamilton never told Quigley that he was being taken into custody.

¶ 3 The waiting room was about ten by sixteen, with multiple seats, a television set, and two doors. The doors led to the hallway and the detective bureau. The doors were closed but not locked. No one was stationed in the waiting room to guard Quigley.

¶ 4 While Quigley waited, Detective Jason Melichar interviewed P.R. who provided him with a written statement. In the statement she said that she and Quigley had kissed, that in November 2011 he had exposed his penis to her and had asked her to touch it, and that at his request she had recorded sexually explicit videos of herself.

The Police Interview Quigley

¶ 5 After waiting more than an hour, according to Quigley, Melichar brought him into an interrogation room and began questioning him. At the time, Quigley was on probation. Quigley had been on probation on five or six prior occasions and also had been previously subject to a probation hold. Quigley believed that he had to cooperate with the police in order to avoid being placed on a hold. But, in any case, whether he cooperated or not, Quigley thought he would be placed on a hold.

¶ 6 According to a transcript of the interview, Melichar told Quigley that he wanted to explain a couple of things to make sure that “we're clear.” Melichar stated that he wanted to make sure that Quigley understood that he was not under arrest, that he was free to leave, and that they were “here just to talk about this case.” Quigley confirmed that he understood. Quigley acknowledged to Melichar that while being transported to the police department he had not been placed in handcuffs or told he was in custody.

¶ 7 During the course of the interview, Melichar asked Quigley about how he met P.R.—through her father; how long he had known her—three years; and the nature of their relationship—“a very good friend.” As the interview progressed, Quigley said that P.R. had kissed him with her tongue, had flashed her breasts at him, and had touched his penis over his pants. Quigley had smacked her on her buttocks and had asked her to make videos of herself with a phone he had purchased for her.

¶ 8 At this point in the interview, Quigley told Melichar that he was “getting ready to be arrested” because he knew what he “was doing [was] wrong.” Melichar asked Quigley if his feelings had changed about being there freely, and Quigley responded, “[n]o, I did come here freely.” Quigley denied that Melichar had done anything to make him feel differently, but Quigley knew that he was going to be arrested. Since Quigley's “perception” had changed and he did not think he was there freely anymore, Melichar said he would get a waiver of constitutional rights form so that they could keep talking about the case. Melichar left the room in order to get the Miranda form.

¶ 9 While Melichar was outside the interview room, he called Quigley's probation agent and was informed that a hold would be placed on Quigley.

¶ 10 Once Melichar returned to the interview room, he read Quigley Miranda warnings from a form, which also contained an acknowledgment and waiver of those rights. Melichar asked Quigley if he understood everything that had been read to him. Quigley asked if he was under arrest. Melichar responded that if Quigley perceived that he was in custody, Melichar was going to read the form “just to be on the safe side and to make sure” that Quigley understood his rights before Melichar asked him any other questions. Quigley replied, “but isn't this ... what they usually read right before they arrest you?” Melichar could not “really interpret” the form or give his “explanation of what it is” because then he would be getting “into kind of some legal stuff” that he could not get into. Melichar continued, “[t]his is a form informing you of your rights. I want to make sure you understand your rights and before I ask any questions.” Quigley cut Melichar off, saying, “I understand my rights,” and “[y]ou can just go ahead and tell me if I'm being arrested.” Melichar said he did not know if Quigley was going to be arrested because he was still investigating the case and did not know all the details, although he thought it was “probably likely” that he would be arrested. Quigley said he was not a lawyer, and Melichar answered that neither was he. Melichar again asked if Quigley understood the form that had been read to him, and Quigley said that he did. Quigley refused to sign the Miranda form, but he was willing to continue answering questions.

¶ 11 Quigley asked if he could “step outside and have a cigarette and wake” himself up. Melichar could not allow that, but he offered to get Quigley a soda, to allow him to use the restroom, and to walk back and forth in a larger room. Quigley did not think it made sense that he was there voluntarily but could not have a cigarette. Melichar responded, “that's kind of changed ... your perception of you being here voluntarily [has] kind of changed. And that changes things for me, too.”

¶ 12 Then, when asked, Quigley denied that anyone had forced him to come to the police station, that he had come of his own free will, and that no one had made him do anything. Quigley asked if he could have run out of McDonald's and never come to the police station, and Melichar said, “[y]ou sure could have.”

¶ 13 Melichar informed Quigley that his probation officer had elected to put a hold on Quigley. Quigley said he “already knew that.” Melichar told Quigley that since Quigley was tired, Melichar would let him rest and “sit tonight on a PO hold.” Melichar said he would interview Quigley again the next day. The entire interview lasted one hour and twenty minutes.

The Probation Department Interviews Quigley

¶ 14 The following day, March 15, 2012, Quigley spoke with a probation officer. In that statement, Quigley admitted to touching P.R.'s vagina and breasts and having her touch his penis in February 2012. He also mentioned that his “mouth [h]as been on her vagina and her mouth has been on [his] penis.” At the top of the statement that Quigley wrote, he was advised that none of this information could be used against him in criminal proceedings.

¶ 15 On March 26, 2012, the State filed the nine-count criminal complaint in Kenosha County case No. 2012CF360.

The Police Reinterview P.R.

¶ 16 On March 28, 2012, the Department of Corrections (DOC) forwarded Quigley's statement to the Kenosha County district attorney. In an affidavit from an assistant district attorney, filed later in response to Quigley's motion to suppress, the assistant stated that he directed Melichar to interview P.R. again after the assistant received Quigley's probation statement.

¶ 17 In August 2012, at the request of the district attorney, Melichar interviewed P.R. again. P.R. stated that in October 2011, while at her mother's house, Quigley exposed his penis to her and repeatedly asked her to touch it. In November 2011, Quigley again exposed his penis, P.R. said, and asked her to touch it. He also put his hand down P.R.'s pants and touched her vagina. In December 2011, he had P.R. touch his penis.

¶ 18 Following this interview, on ...