State v. Spaeth

• Citation: 2012 WI 95,343 Wis.2d 220,819 N.W.2d 769
• Decision Date: 13 July 2012
• Docket Number: No. 2009AP2907–CR.,2009AP2907–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Joseph J. SPAETH, Defendant–Appellant.
• Court: United States State Supreme Court of Wisconsin

343 Wis.2d 220

819 N.W.2d 769

2012 WI 95

STATE of Wisconsin, Plaintiff–Respondent,

v.Joseph J. SPAETH, Defendant–Appellant.

No. 2009AP2907–CR.

Supreme Court of Wisconsin.

Argued Oct. 18, 2011.

Decided July 13, 2012.

For the defendant-appellant, there were briefs filed by Shelley M. Fite and Andrew R. Hinkel, assistant state public defenders, and oral argument by Shelley M. Fite.

For the plaintiff-respondent, the cause was argued by Sally L. Wellman and the brief was filed by Mark A. Neuser, assistant attorneys general, with whom on the brief was J.B. Van Hollen.

An amicus curiae brief was filed by Jake L. Remington, Ellen Henak and Henak Law Office, S.C., Milwaukee, for the Wisconsin Association of Criminal Defense Lawyers.

DAVID T. PROSSER, J.

[343 Wis.2d 223]¶ 1 This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2009–10).¹ Joseph J. Spaeth (Spaeth) appealed his convictions of four counts of child enticement after the Winnebago County Circuit Court, William H. Carver, Judge, declined to suppress an incriminating statement Spaeth made to Oshkosh police officers who were conducting a follow up investigation of incriminating admissions that Spaeth made to his probation agent during a compelled polygraph examination. Spaeth claims that his admissions to the agent were subject to use and derivative use immunity, and that the derivative use immunity covered the subsequent statement he made to Oshkosh police, even though this statement was preceded by a valid Miranda warning and Judge Carver found that the statement was voluntary. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[343 Wis.2d 224]¶ 2 The court of appeals certified the case to this court, asking us “ to clarify if a statement made to law enforcement following a probationer's honest accounting to an agent may become a ‘wholly independent source’ under Kastigar [ v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) ] and, if so, under what parameters.”

¶ 3 We hold that the statement that Spaeth made to Oshkosh police was derived from the compelled, incriminating, testimonial statement that he made to his probation agent. Thus, Spaeth's statement to police was not derived from a source “wholly independent” from his compelled testimony, as required by Kastigar and State v. Evans, 77 Wis.2d 225, 252 N.W.2d 664 (1977), even though the statement was preceded by a valid Miranda warning. Consequently, Spaeth's statement to officers is subject to derivative use immunity and may not be used in any subsequent criminal trial. Therefore, we reverse the convictions of Joseph Spaeth and determine that his compelled statement to his probation agent, his subsequent statement to Oshkosh police, and any evidence derived from either statement must be suppressed in any criminal trial. This rule does not apply to a revocation hearing.

I. FACTUAL BACKGROUND

¶ 4 In February 2006 Spaeth was on probation ² for first degree sexual assault of a child. His probation agent was Rebecca DeWitt (Agent DeWitt). On February[343 Wis.2d 225]15, 2006, Spaeth came to Agent DeWitt's office to participate in a polygraph examination. All sex offenders supervised by Agent DeWitt were required to take polygraph examinations at least once per year. Spaeth was required to take this examination, required to cooperate with the examiner, and required to answer questions truthfully. His failure to take the polygraph examination could have resulted in revocation of his probation. His failure to answer questions truthfully also could have resulted in a serious sanction.

¶ 5 Before taking the polygraph examination, Spaeth signed a “consent form” provided by Behavioral Measures Midwest, L.L.C., the company administering the polygraph examination. The form read in part:

[P]ursuant to Wisconsin Administrative Code 332.15, my Wisconsin Department of Corrections (DOC) Agent has requested I take a polygraph examination.

....

I understand that I am not required to consent to the administration of the examination, and that I can stop the examination at anytime that I desire. In regards to any admissions I make concerning offenses for which I am not on deferred adjudication, probation, or parole, or for which I have not been previously convicted by a court of law, I understand I have the right to have a lawyer present to advise me prior to any questioning and during any questioning. If I am unable to employ a lawyer, I have the right to have a lawyer appointed to counsel with me prior to and during any questioning. I have the right to remain silent and not make any statement at all and any statement I make can and may be used in evidence against me at my trial. I have the right to terminate the interview at anytime.

[343 Wis.2d 226]¶ 6 The form given to Spaeth was not an accurate statement of the law for this probationer.³ Spaeth's failure to take the polygraph examination could have resulted in his revocation, and his refusal to sign the “consent form” could have been deemed a refusal to take the polygraph examination. In addition, any statements that Spaeth made during the polygraph examination were subject to use and derivative use immunity and could not be used against him at a criminal trial. Agent DeWitt later testified that Spaeth was aware that the polygraph results and the statements he made in the examination could not be used in a criminal prosecution.

¶ 7 A polygraph examination in these circumstances consists of three parts. First, there is pretest preparation in which the examiner goes through the rules that apply to the probationer and the probationer has an opportunity to admit in advance to any kind of rule violation. Second, there is the actual polygraph test during which the probationer is asked point by point whether he has violated any rule. Third, there is a post-test interview based on admitted rule violations and any apparent deception during the test.

¶ 8 On the morning of February 15, Spaeth signed the form, went through the pretest preparation, and took the test. Agent DeWitt was not present while the test was administered. However, following the test, she was told by the examiner that the polygraph showed that Spaeth was being deceptive.

¶ 9 Thereafter, Agent DeWitt discussed the results of the polygraph with the examiner in Spaeth's presence. During this interview, Spaeth admitted violating his curfew, having unsupervised contact with minors, and engaging in physical contact with those minors—all violations of his rules of supervision. Specifically, Spaeth “said that he had been horse-playing with his nieces and nephews and he knew that to be wrong.”

¶ 10 Believing that Spaeth had violated his supervision rules, Agent DeWitt contacted the Oshkosh Police Department to pick up Spaeth for a probation hold.

¶ 11 Before Oshkosh police officer Joseph Framke (Officer Framke) arrived, Spaeth admitted more: that he “may have brushed up against his nieces and nephews vaginas or butts or breast area.” This admission changed Spaeth's status from someone who was about to be held for rules violations to someone who was about to be held in connection with a possible criminal offense. When Officer Framke arrived, he was told in Spaeth's presence that Spaeth had admitted to physical contact with minors that “may have been a sexual assault.” Officer Framke later acknowledged that the agent told him that Spaeth “had made some comments about possibly having inappropriate contact with some nephews and nieces” and “having some contact with the vagina, breast and buttock area.”

¶ 12 Officer Framke handcuffed Spaeth and put him in the back of his squad car. He also asked Spaeth “if he would be willing to sit down and talk to me about what Agent DeWitt had told me, and he told me that he would.” Agent DeWitt was present during this exchange, and she immediately told Spaeth that he did not need to speak with police and that he could speak with an attorney and that he was not compelled to give detectives “any kind of statement. And Joe [Spaeth] said, no, he wanted to get it off his chest.”

[343 Wis.2d 228]¶ 13 Spaeth was taken to the police station at approximately 1:00 p.m. At the station he was led to an interview room at the Oshkosh Police Department where he met with Officer Framke and Detective James Busha (Detective Busha). Before the interrogation, Officer Framke told Detective Busha about the information he had received that Spaeth may have sexually assaulted some children. In the interview room, Detective Busha began to discuss Spaeth's Miranda rights at 1:20 p.m., and the officers believed that Spaeth understood those rights. Spaeth agreed to speak with the officers and did not invoke his Miranda rights. Spaeth was in custody continuously from the time Officer Framke placed him in custody for a probation hold until Spaeth gave the statement to officers. The waiver of rights form was signed by Spaeth at 1:24 p.m.

¶ 14 During the interrogation, Spaeth gave a statement that Detective Busha transcribed. The statement implicated Spaeth in several sexual assaults of his minor relatives, including incidents on two dates in mid-February, when Spaeth brushed up against the children inappropriately while wrestling with or tickling them. The interrogation was completed by approximately 2:40 p.m.

¶ 15 Oshkosh Police were unaware of any new sexual assaults involving Spaeth prior to Agent DeWitt informing them of Spaeth's admissions; Agent DeWitt's disclosure led to the officers obtaining the statement during the interrogation.

¶ 16 After interrogating Spaeth, Detective Busha met with the parents of Spaeth's minor relatives who were the victims of the alleged crimes. The parents confirmed that Spaeth had contact with the minor relatives but said they were not aware that Spaeth had any sexual contact with them. The minor relatives were not able to say that they had been assaulted by Spaeth.

I...