State v. Sahs

• Decision Date: 18 June 2013
• Docket Number: No. 2009AP2916–CR.,2009AP2916–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Gregory M. SAHS, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

347 Wis.2d 641

832 N.W.2d 80

2013 WI 51

STATE of Wisconsin, Plaintiff–Respondent,

v.Gregory M. SAHS, Defendant–Appellant–Petitioner.

No. 2009AP2916–CR.

Supreme Court of Wisconsin.

Argued Feb. 25, 2013.

Decided June 18, 2013.

For the defendant-appellant-petitioner, there were briefs and oral argument by Mark S. Rosen and Rosen and Holzman, LTD., Waukesha.

For the plaintiff-respondent, the cause was argued by Sarah K. Larson, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

SHIRLEY S. ABRAHAMSON, Chief Justice.

[347 Wis.2d 644]¶ 1 This is a review of an unpublished decision of the court of appeals that affirmed the judgment of conviction entered by the Circuit Court for Milwaukee County, Jeffrey A. Conen, Judge.¹

¶ 2 Gregory M. Sahs, the defendant, was convicted of possession of child pornography in violation of Wis. Stat. § 948.12(1m) (2007–08).²

¶ 3 The charge of possessing child pornography arose from incriminating admissions the defendant made to his probation agent. The defendant was on probation as a result of a prior conviction for possession of child pornography. After the defendant made incriminating statements to his probation agent, the police were alerted and found the computer the defendant used to access and possess child pornography, leading to a revocation of his probation and these additional criminal charges.

¶ 4 After being criminally charged, the defendant moved the circuit court to suppress the admissions to his probation agent, claiming that they were compelled, testimonial, and incriminating in violation of his state and federal constitutional privilege against self-incrimination. The Fifth Amendment to the United States Constitution ³ and Article I, Section 8 of the Wisconsin Constitution ⁴ provide that no person shall be compelled in any criminal case to be a witness against himself.

¶ 5 The defendant's admissions are clearly testimonial and incriminating. The issue is whether the admissions were compelled.

¶ 6 The legal issue before this court is the same as the legal issue before the circuit court and court of appeals: Should the incriminating statements made by the defendant to his probation agent admitting possession of child pornography be suppressed on the ground that the statements were compelled in violation of the defendant's federal constitutional privilege against self-incrimination? ⁵

[347 Wis.2d 646]¶ 7 The court of appeals concluded that the circuit court properly denied the motions to suppress: “[T]he evidence that Sahs relies upon [namely a Department of Corrections document] does not appear in the record” and “the facts in the record are insufficient to show compulsion.” ⁶

¶ 8 We affirm the decision of the court of appeals.

¶ 9 The defendant has failed to meet his burden to prove that his initial, oral statements were compelled.⁷ Neither the circuit court nor this court can consider the Department of Corrections form that the defendant claims advised him that his incriminating statements cannot be used against him in criminal proceedings. The form is not in the record. The parties did not agree about its existence, the details of its use, or the defendant's knowledge of its contents before the defendant made his oral admissions.

[347 Wis.2d 647]¶ 10 The defendant has failed to put sufficient evidence into the record to show that the rules of his probation rendered his incriminating statements compelled. No documents, no testimony, and no undisputed, agreed-upon facts by the parties are in the record to evidence any compulsion of the defendant to admit possession of child pornography to his probation agent.

¶ 11 Because there is not sufficient evidence in the record to show compulsion, we affirm the decision of the court of appeals, which affirmed the circuit court's order denying suppression of the statements and the judgment of conviction.⁸

I

¶ 12 We first turn to the facts. The Complaint charging the defendant with two counts of possession of child pornography was filed on July 2, 2008. The defendant waived a preliminary hearing. The State filed the information based on the complaint. The defendant entered a plea of not guilty to the two counts charged.

¶ 13 The defendant then filed his motion seeking to suppress the statements he made to his probation agent. The State opposed the motion. The circuit court requested that the parties participate in an evidentiary hearing regarding the suppression motion. Instead, both parties proffered facts in written briefs to the circuit court and stipulated that the circuit court could decide the case based on the factual representations set forth in the briefs.

[347 Wis.2d 648]¶ 14 The facts set forth here are therefore predominantly taken from the parties' briefs filed in the circuit court. The circuit court explained that it was “dealing with representations here and not a factual record by affidavit.” ⁹

¶ 15 As one might suspect from the proceedings we have described thus far, the record in this case relating to the suppression motion is extremely thin. What follows are the parties' undisputed, agreed-upon facts we have culled from the parties' briefs and the findings of fact the circuit court made.

¶ 16 The parties agree that the defendant was sentenced to probation in 2005 arising from a conviction for possession of child pornography.

¶ 17 The parties agree that Department of Corrections Probation/Parole Agent Michael Krause was assigned to supervise the defendant's probation and that the defendant was required to participate in sex offender group therapy as a condition of his probation.¹⁰ The other conditions of the defendant's probation are not in the record.

¶ 18 The parties finally agree that the defendant was on probation when, in January 2007, he made statements to Agent Krause indicating that he again possessed child pornography. From there, the parties' factual assertions diverge.

[347 Wis.2d 649]¶ 19 The defendant asserts that he was required to take a polygraph test as a condition of sex offender treatment and that he failed this polygraph test on December 15, 2006,¹¹ when he untruthfully answered that he had not broken any of his probation rules.

¶ 20 The State, in contrast, contends that the polygraph test was administered because the defendant had “refused to participate in a meaningful way in his group therapy sessions.” The focus of the polygraph test was on the defendant's prior sexual history. In his pre-polygraph examination interview, the defendant admitted that he had not been truthful about this history previously; the polygraph test then focused on whether the defendant had been truthful in the pre-polygraph exam interview. The result of the polygraph test was that the defendant was truthful.

¶ 21 The parties agree that the defendant was terminated from his group therapy sessions. But, the parties dispute the reason for termination. The defendant believes he was terminated because he failed the polygraph test. The State asserts that the defendant was terminated because the information that he provided about his prior sexual history to the polygraph examiner in a pre-test interview should have been disclosed during his previous group therapy sessions.

¶ 22 The parties agree that the defendant was given an opportunity to regain admittance to group therapy. They do not agree on the conditions he had to meet for re-admittance or whether he was re-admitted.

¶ 23 The defendant asserts that he was required to take another polygraph test, which was scheduled for January 13, 2007.¹² The State asserts that the defendant was required only to write a letter of full disclosure regarding his prior sexual history and that when he completed the letter, he was allowed back into therapy. The State asserts that the defendant had already been allowed back into his group therapy when he and Agent Krause met on January 12, 2007, and that Agent Krause had no intention of initiating revocation proceedings against the defendant, at that time, for his probation violations.

¶ 24 The State's brief sets forth Agent Krause's recollection about the events of January 2007. The State asserts that in January 2007, Agent Krause received a phone call from the defendant, who wanted to come in to talk “about some things.” According to Agent Krause, he and the defendant agreed upon a mutually acceptable date, which was January 12, 2007.

¶ 25 The date of the meeting (Jan. 12) was the day before the date the defendant claims that he was required to take a polygraph examination (Jan. 13) in order to get back into therapy. The State makes no mention of this second polygraph test.

¶ 26 The parties agree that at the January 12, 2007 meeting, the defendant orally told Agent Krause that he had violated the rules of his probation by using a computer he kept at a friend's house to access child pornography. According to Agent Krause, the defendant volunteered that he had been violating the rules of his probation.

¶ 27 According to the defendant and Agent Krause, Agent Krause wrote down the defendant's statements on a Department of Corrections form, which the defendant signed. The defendant asserts that this Department form included a notification and a box checked off next to the following statement:

I have been advised that I must account in a true and accurate manner for my whereabouts and activities, and that failure to do so is a violation for which I could be revoked. I have also been advised that none of this information can be used against me in criminal proceedings.¹³

¶ 28 The defendant does not state, either in the brief he filed in this court or in the motion he filed in the circuit court, when he was first advised that his statements could not be used against him in a criminal proceeding or whether he saw the form before he gave the oral statements.

¶ 29 The State agrees that Agent Krause wrote down the defendant's statement on a Department form but neither denies nor concedes the...