State v. Turner

• Decision Date: 26 August 2014
• Docket Number: No. 2013AP2101–CR.,2013AP2101–CR.
• Citation: 854 N.W.2d 865,356 Wis.2d 759
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Price G. TURNER, III, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

356 Wis.2d 759

854 N.W.2d 865

STATE of Wisconsin, Plaintiff–Respondent

v.Price G. TURNER, III, Defendant–Appellant.^†

No. 2013AP2101–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 5, 2014.

Opinion Filed Aug. 26, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Edward John Hunt of Hunt Law Group, S.C., Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Donald V. Latorraca, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HOOVER, P.J., STARK, J., and THOMAS CANE, Reserve Judge.

Opinion

CANE, J.

¶ 1 Price Turner, III, appeals a judgment of conviction for repeated sexual assault of the same child, his fifteen-year-old daughter. He asserts the circuit court erred by denying his motion to suppress warrantless police recordings of incriminating statements he made to his daughter. Specifically, he contends that because his daughter was a minor at the time the statements were made, she was incapable of consenting to their interception under the one-party consent exception to the Wisconsin Electronic Surveillance Control Law (WESCL), Wis. Stat. §§ 968.27 –.375.¹

¶ 2 We conclude the proper test for minor one-party consent under the WESCL is set forth in State v. Tomlinson, 2002 WI 91, 254 Wis.2d 502, 648 N.W.2d 367. Under that test, the ability of a minor to consent to police interception of his or her conversations is a question of voluntariness. To determine whether a minor voluntarily gave consent, courts should consider the totality of the circumstances, including, but not limited to, a minor's age, intelligence, knowledge, and maturity. Fundamentally, a minor's consent must be the product of an “essentially free and unconstrained choice.” See Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We conclude it was in this case.

BACKGROUND

¶ 3 On the morning of May 19, 2011, police received a request from a guidance counselor to respond to Hortonville High School based on the daughter's report that her father had been sexually assaulting her for several years. She was fifteen years old at the time of the report. She described inappropriate touching beginning when she was six or seven years old, followed by genital contact at age ten or eleven, and eventually intercourse, which occurred more frequently when she turned thirteen.

¶ 4 She also described her efforts to resist the assaults. She stated that as she got older, she realized what Turner was doing was wrong and told him to stop. She would also pull away when Turner began having intercourse with her, but he would not listen to her and sometimes became angry and would “storm out of the room.” When she moved to a new residence with Turner at age fourteen, she told him that if he continued to assault her, she would run away.

¶ 5 Following his daughter's ultimatum, no further assaults occurred until approximately four weeks before her report to the guidance counselor. That night, she woke up with Turner on top of her. Turner had inserted his penis in her vagina, and she could hear Turner groaning. She was “pretty certain” Turner ejaculated inside of her vagina.

¶ 6 After reporting the assaults, she agreed to wear a wireless recording device with which police could listen to her conversations with Turner. The daughter was recorded telling Turner, “[W]ell, you know how I said that I was supposed to get my period next week?” Before she could continue, Turner said, “I don't think, I don't, no I don't think you are pregnant or anything. Don't worry about that.” She responded, “[B]ut you're the only guy I've ever got....” Turner interrupted, stating, “I know, but I didn't do anything inside or nothing like that, I'm clean. It has to be forced in there, you know it doesn't just swim from the outside in. They don't last that long.”

¶ 7 Police then entered the residence and arrested Turner. Turner waived his rights and confessed. He was ultimately charged with repeated sexual assault of the same child contrary to Wis. Stat. § 948.025(1)(d), a Class B felony.

¶ 8 Turner filed a motion to suppress the recorded statements and all derivative evidence. He asserted that police intercepted his communications in violation of the WESCL because his daughter was under age sixteen at the time and lacked the capacity to consent to the interception as a matter of law. An evidentiary hearing was held at which officers Brian Bahr and Brad Kuehl testified.

¶ 9 Bahr, a school liaison officer with the Hortonville Police Department, testified he met Turner's daughter at her school. She gave a detailed accounting of the prior sexual assaults, and they planned a recorded telephone call with Turner. Bahr made clear to her that everyone would understand and they would not move forward if she felt it was “too difficult.” She offered to help, appeared to understand the process and equipment, did not appear hesitant, and “was fully aware of what was going to happen.” She was eventually taken to the police department for the phone call. She had a friend with her during portions of the interview at school, who also accompanied her to the police department.

¶ 10 Because of difficulties contacting Turner, Bahr suggested the use of a wireless body transmitter. Bahr contacted officer Kuehl from the Grand Chute Police Department, who was more familiar with body wires.² They explained to the daughter that she would wear a device on her body that would allow police to hear and record her conversation with her father. The daughter indicated that she understood and she agreed to wear the wire. A female administrative assistant placed the wire on the daughter, who did not appear upset or emotional. Afterward, she walked to her father's residence a few blocks away. At that point, approximately forty minutes had elapsed since Bahr suggested the wire. Police did not obtain the consent of either parent, nor did the daughter sign a consent form.

¶ 11 Kuehl testified he met the daughter for the first time at the police department on May 19, 2011, where she freely consented to wear the wire. She was afraid her father would discover it and asked multiple times if officers would be close enough to help her. Kuehl testified the daughter's “demeanor was good other than fear I think of going to actually talk to her father about the circumstances she did, but she had full understanding.” Kuehl did not believe she responded differently to the wire—including her demeanor, questions, or actions—than any of the adult subjects he had worked with in the past.

¶ 12 The circuit court orally denied Turner's suppression motion. It first observed that no court had yet addressed whether a minor could consent to police interception of a communication under the WESCL's one-party consent exception, Wis. Stat. § 968.31(2)(b). However, drawing on consent cases in other contexts, the court concluded the “simple fact of minority status is not an impediment[ ]” to consent under § 968.31(2)(b). Rather, the court determined a subjective analysis was appropriate, under which the court would consider whether a person has the requisite “age, experience, education, background, intelligence, [and] capacity to understand what's going on.” Finally, the court noted that although Turner was not challenging his daughter's subjective capacity, the facts demonstrated “a knowing and voluntary consent.”

¶ 13 Following the denial of his suppression motion, Turner entered into plea negotiations with the State. He ultimately pled no contest to a reduced charge of repeated sexual assault of the same child contrary to Wis. Stat. § 948.025(1)(e), a Class C felony. Turner was sentenced to eight years' initial confinement and eight years' extended supervision. He appeals the denial of his suppression motion.

DISCUSSION

¶ 14 This case concerns the scope of the WESCL's one-party consent exception, Wis. Stat. § 968.31(2)(b). The interpretation of a statute is a question of law we review de novo. If the meaning of a statute is plain, we will not inquire further. See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. Statutory language is generally given its common, ordinary, and accepted meaning. Id. We interpret a statute “in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶ 46. Application of the one-party consent exception to undisputed facts is also a question of law we decide without deference to the circuit court. State v. Ohlinger, 2009 WI App 44, ¶ 6, 317 Wis.2d 445, 767 N.W.2d 336.

¶ 15 “The [WESCL] governs the lawfulness and uses of electronic intercepts of communications.” Id., ¶ 7. The WESCL generally criminalizes the interception of wire, electronic, or oral communications and the disclosure or use of the contents of such communications. See Wis. Stat. § 968.31(1). However, it is not unlawful for “a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.” Wis. Stat. § 968.31(2)(b). This is known as the one-party consent exception.

¶ 16 At trial, any aggrieved person can seek to have an unlawfully intercepted communication and all derivative evidence suppressed. See Wis. Stat. § 968.30(9)(a). However, testimony regarding lawfully intercepted communications under Wis. Stat. § 968.31(2)(b), and evidence derived from those communications, is admissible in a felony proceeding as long as the party who consented to the interception is available to testify or another witness is available to authenticate the recording.³ See Wis. Stat. § 968.29(3)(b). Thus, as long as the conversation with Turner was lawfully intercepted under the one-party consent exception, Turner's ...