State v. Vice
| Decision Date | 19 May 2020 |
| Docket Number | Appeal No. 2018AP2220-CR |
| Citation | 2020 WI App 34,946 N.W.2d 206,392 Wis.2d 754 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Adam W. VICE, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Joshua L. Kaul, attorney general, and Jennifer R. Remington, assistant attorney general.
On behalf of the defendant-respondent, the cause was submitted on the brief of Frederick A. Bechtold, Taylors Falls, Minnesota.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 This case—which is before us for the second time—requires us to determine whether the circuit court properly granted Adam Vice's motion to suppress his confession to sexually assaulting a four-year-old girl. Vice confessed during an interview that occurred after he failed a polygraph examination. In a previous opinion, we reversed an order suppressing Vice's confession and remanded for the circuit court to make additional findings of fact as to whether the confession was voluntary. On remand, the court determined Vice's confession was not voluntary and again granted his suppression motion. The court also addressed—and appeared to agree with—Vice's assertion that his confession should be suppressed because the polygraph examination and post-polygraph interview were not discrete events.
¶2 The State now appeals, arguing the totality of the circumstances establishes that Vice's confession was voluntary. The State also contends we should not consider Vice's argument that the polygraph examination and post-polygraph interview were not discrete events because Vice previously conceded that they were discrete events. In the alternative, the State argues the record establishes that the polygraph examination and post-polygraph interview were discrete events.
¶3 Because both Vice and the State have briefed the issue and because the circuit court considered it, we exercise our discretion to address Vice's argument that the polygraph examination and post-polygraph interview were not discrete events. We reject Vice's argument in that regard. Based on the totality of the circumstances, however, we agree with Vice that his confession during the post-polygraph interview was not voluntary. We therefore affirm the order granting Vice's motion to suppress his confession.
¶4 In December 2014, police received a report that a four-year-old girl had been sexually assaulted by Vice, a friend of the girl's family. The victim reported that Vice inserted his finger into her anus and vagina and had attempted to lick her "privates." The assault was alleged to have occurred in October 2014 at a home where Vice lived with the victim's mother and others.
¶5 On December 11, 2014, Vice voluntarily underwent a polygraph examination regarding the alleged assault, which the examiner concluded he failed. During a recorded interview with two detectives following the polygraph examination, Vice confessed to sexually assaulting the victim. Vice later moved to suppress his confession, arguing it was involuntary because the detectives "repeatedly told [him] he failed the polygraph examination before getting the statement they wanted."
¶6 At the suppression hearing, Washburn County Sheriff's Department investigator William Fisher testified he had interviewed Vice at his workplace in December 2014 regarding the sexual assault allegations. During the interview, Vice denied any wrongdoing and asked Fisher if there was anything he could do to clear his name. Fisher suggested that Vice take a polygraph test, and Vice agreed to do so.
¶7 Fisher subsequently arranged for detective Ryan Lambeseder of the Eau Claire Police Department to conduct a polygraph examination of Vice. Because Vice had no way of independently getting to Eau Claire, Fisher drove him there from Rice Lake. Vice sat in the front passenger seat of Fisher's vehicle and was not handcuffed. On the way to Eau Claire, Fisher reminded Vice that he did not have to take the polygraph test, and Vice responded that he wanted to clear his name.
¶8 When Fisher and Vice arrived at the Eau Claire Police Department, Lambeseder escorted Vice into the room where the polygraph examination would be conducted, and Fisher watched from an observation room. Lambeseder testified that before he began the polygraph examination, he read two forms aloud to Vice: a form waiving Vice's Miranda1 rights and a polygraph examination consent form. Vice did not have any questions and signed both forms.
¶9 Lambeseder then conducted a "pretest," which involved asking Vice questions about his background and recording Vice's responses on a "polygraph examination data sheet." In response to Lambeseder's questions, Vice indicated that he had not taken a previous polygraph examination; his physical condition was average; he had not had any major injuries or surgeries in the last six months; he was not in any discomfort; he had eaten during the previous twenty-four hours; he went to bed at 10:30 p.m. the prior evening and slept until 7 a.m.; he "slept fair"; he had never been treated by a psychiatrist or psychologist, nor had he been a patient in a mental hospital; he did not have heart disease, any communicable diseases, high or low blood pressure, seizures, hearing loss, or back issues; and he had not consumed alcohol in the last twenty-four hours or illegal drugs in the last forty-eight hours. Based on this information, Lambeseder concluded Vice was "fit to test." Lambeseder also ascertained that Vice had completed high school.
¶10 Lambeseder then conducted the polygraph examination, which took about one hour and forty-five minutes. During the examination, Vice denied any sexual misconduct involving the victim. After the examination was completed, Vice again signed the polygraph examination consent form, which stated the examination "was concluded at 11:40 am." Lambeseder then escorted Vice to a different interview room, where Vice was left alone for ten to fifteen minutes while Lambeseder scored the examination and informed Fisher of the results.
¶11 Fisher and Lambeseder subsequently returned to the interview room where Vice had been waiting and conducted a post-polygraph interview. Vice was not handcuffed during the interview. The interview room was an "average temperature," was small, and had no windows. The room contained a square interview table that was pushed against one wall. Vice was seated in the corner of the room located farthest from the door. Fisher was seated across the table from Vice, and Lambeseder was seated at the side of the table located to Fisher's left. Vice would have had to walk past both officers to leave the interview room.
¶12 The post-polygraph interview was video recorded, and the circuit court viewed the recording before ruling on Vice's suppression motion.2 Immediately after the detectives entered the interview room, Lambeseder asked Vice how he thought he did on the polygraph examination. Vice responded, Lambeseder then informed Vice that he had not passed the examination, and he further stated that on the questions regarding the victim, it was "very clear" Vice was not telling the truth.
¶13 Lambeseder continued:
And so that's where, Adam, we want to talk about that, okay? We want you to—this has been weighing on you, and I can tell. And I can tell on that exam, okay? In fact, I can tell on your face it's been weighing on you. And I understand that, okay? It would—something like that would weigh on me, but—okay? But now is the time let's talk like men. Let's get it out there. And let's figure out, you know, just where we need to go from here, okay?
Vice responded:
I'll be honest. ... 100 percent honest and I'll take that test again. I do not remember doing this. I honestly do ... and I will take the test, but ...—but—but obviously I failed the test. Something's wrong. Is there a way or is it any possibility that I—somehow I blacked out and not remember this? ... Because right now I feel like I'm having a heart attack.
Lambeseder replied, "You do remember doing it, otherwise you wouldn't react the way you did on the exam, okay?"
¶14 For approximately the first eight minutes of the post-polygraph interview, Vice consistently asserted that he did not remember assaulting the victim. During that time, however, Fisher and Lambeseder repeatedly asserted that Vice's performance on the polygraph examination showed he remembered the assault because he would not have reacted the way he did during the examination if he did not remember. The detectives also emphasized that it was important for Vice to tell the truth so that they could determine whether Vice was "the guy who is going to do this to every little kid he comes in contact with" or "the guy who made a mistake, made a poor choice, and we need to deal with that appropriately as opposed to the guy who is going to do this to everybody."
¶15 Fisher ultimately stated that if Vice did not take responsibility for his actions, the district attorney and judge would think he was dangerous and that other children in the community needed to be protected from him. Conversely, Lambeseder then inquired, "Can you do that for us right now?" and asked Vice to "[b]e truthful." At that point—about eight minutes after the interview began and after the officers had referenced the failed polygraph seven or eight times—Vice made his first admission to the sexual assault, stating, "It's going to sound really shitty for me to say this right now, but I sexually assaulted [the victim]."
¶16 Despite having admitted that he had sexually assaulted the victim, Vice continued to vehemently deny having any...
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