State v. Vice

• Citation: 2021 WI 63,961 N.W.2d 1
• Decision Date: 16 June 2021
• Docket Number: No. 2018AP2220-CR,2018AP2220-CR
• Court: United States State Supreme Court of Wisconsin
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Adam W. VICE, Defendant-Respondent.

961 N.W.2d 1

2021 WI 63

STATE of Wisconsin, Plaintiff-Appellant-Petitioner,

v.Adam W. VICE, Defendant-Respondent.

No. 2018AP2220-CR

Supreme Court of Wisconsin.

Oral Argument: December 9, 2020

Opinion Filed: June 16, 2021

For the plaintiff-appellant-petitioner, there were briefs filed by Kara L. Janson, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Kara L. Janson.

For the defendant-respondent, there was a brief filed by Frederick A. Bechtold ; Taylors Falls, Minnesota. There was an oral argument by Frederick A. Bechtold.

An amicus curiae brief was filed on behalf of The Innocence Project, Inc., The Center on Wrongful Convictions of Youth, and the Wisconsin Innocence Project by Carrie Sperling, Keith Findley, and University of Wisconsin Law School, Madison; with whom on the brief was Lauren Gottesman; New York, New York.

KAROFSKY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined, and in which HAGEDORN, J., joined except for ¶25 and footnote 14. HAGEDORN, J., filed a concurring opinion.

JILL J. KAROFSKY, J.

¶1 This case is about a post-polygraph interview. We are tasked with deciding whether the circuit court¹ erred when it granted Adam Vice's motion to suppress, concluding that the statements he made during a post-polygraph interview were involuntary. The court of appeals² affirmed the decision of the circuit court, and now the State seeks review.

¶2 We conclude that the statements Vice made during his post-polygraph interview are admissible because: (1) the interview was discrete from the polygraph examination; and (2) the statements were not the product of police coercion, and therefore were voluntary. Accordingly, we reverse the decision of the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶3 On December 4, 2014, Investigator William Fisher of the Washburn County Sheriff's Department—who was investigating child sexual assault allegations in which a four-year-old girl reported to her caregiver that Vice had sexually assaulted her—met with Vice at Vice's workplace. During their meeting, Vice denied any wrongdoing and discussed with Fisher whether "there was anything [Vice] could do to clear [his] name." Fisher suggested that Vice take a polygraph examination; Vice agreed to do so. Four days later, Vice called Fisher to arrange the polygraph examination. It was scheduled for 10:00 a.m. on December 11 at the Eau Claire Police Department. Because Vice did not have his own transportation, he accepted Fisher's offer of a ride to the examination.

A. The Polygraph Examination

¶4 On December 11, Fisher arrived at Vice's residence in an unmarked police car to find Vice waiting for him outside. At Fisher's invitation, Vice sat in the front seat of the car. Fisher reminded Vice that he did not have to take the polygraph examination, and that his participation was voluntary. Vice was not handcuffed. Vice and Fisher did not discuss the sexual assault allegations or the upcoming polygraph examination during the drive, which lasted slightly less than two hours.

¶5 Upon arriving at the police station, Eau Claire Police Detective Ryan Lambeseder escorted Vice to the polygraph examination room, while Fisher went to an observation room. Prior to the start of the polygraph examination, Vice signed a "Waiver of Rights" form that recited his Miranda rights.³ He also signed a "Polygraph Examination Consent" form, which Lambeseder read aloud to him, indicating that he "voluntarily: without threats, duress, coercion, force, promises of reward or immunity, agree[d] and stipulate[d] to submit to take a polygraph (truth verification) examination."⁴

¶6 Lambeseder also reviewed with Vice the Eau Claire Police Department Polygraph Examination Data Sheet and wrote down Vice's answers. Vice described his physical condition at the time as "average" and stated that he:

• was experiencing no discomfort;

• had eaten in the last 24 hours;

• had slept fairly for eight or more hours the night before;

• had no problems with high blood pressure or seizures;

• had not consumed alcohol or drugs in the previous 24 hours;

• had a high school education;

• had been arrested once before; and

• had never seen a psychologist or psychiatrist.

¶7 The polygraph examination lasted one hour and 45 minutes. During that time, Lambeseder never raised his voice, threatened Vice, or made any promises to him, and Vice made no admissions of wrongdoing. After the polygraph examination concluded, Vice again signed the Polygraph Examination Consent Form.⁵

B. The Post-Polygraph Interview

¶8 Once Vice signed the second form, Lambeseder escorted him to a separate interview room. Vice sat at a small table, facing the door with a wall behind him. Fisher and Lambeseder joined him ten to 15 minutes later to commence the interview.

¶9 Over the course of the approximately 45-minute interview, Fisher and Lambeseder made at least 11 references to Vice's polygraph results.⁶ The first four references took place immediately, when Lambeseder told Vice, "You didn't pass the exam." Lambeseder continued: "[T]he questions regarding [the victim], it's very clear, Adam, that you weren't telling the truth .... And I can tell on that exam, okay?" The fifth reference occurred soon after, when Vice asked if it was possible that he "blacked out" and Lambeseder responded, "You do remember doing it, otherwise you wouldn't react the way you did on the exam, okay?" The next three references occurred intermittently over the next few minutes, and referred to Vice's "reactions" without specifically referencing the polygraph examination. For example, "It's not blocked out ... because you've reacted".

¶10 About a minute later (eight minutes into the interview), Vice offered his first inculpatory statement in response to Fisher's assurances that the criminal justice system would address his case more leniently if the assault was "an isolated mistake" and Vice "underst[ood] that he messed up." Vice's initial statement admitting to the assault was responsive to Lambeseder telling Vice to "[b]e truthful." Vice said, "It's going to sound really shitty for me to say this right now, but I sexually assaulted [the victim]." Two minutes later (ten minutes into the interview) Vice stated, "I'll admit that I must have did it because obviously the test says that I did it, but I don't physically remember," in response to which Lambeseder made the ninth reference: "Try, okay .... If we believe that you didn't remember, we wouldn't be talking to you about this, you know?"

¶11 Vice then began making statements regarding his access to the victim. About six minutes later (16 to 17 minutes into the interview), Lambeseder made the tenth reference, stating, "it shows on the test that you remember, okay?" Lambeseder then informed Vice that the victim disclosed details about Vice's conduct by both describing and physically demonstrating how he assaulted her. Lambeseder urged Vice to tell the truth and to take responsibility so that Vice and the victim could both get help. The officers offered to ask Vice direct questions with "yes" or "no" answers so that the interview would be easier for Vice, and he accepted that offer. Vice then began providing details about the sexual assault itself, over a period of about eight minutes, in response to the officers’ specific questions and without any reference to the polygraph examination.

¶12 Around 30 minutes into the interview, after Vice provided numerous details about the assault, Fisher made the 11th and final reference to the polygraph examination. He mentioned Lambeseder's experience "working with the polygraph things" to show Lambeseder's familiarity with "the techniques people use" to avoid admitting responsibility for sexual assaults, but Fisher did not mention Vice's polygraph results. While Vice repeatedly claimed not to remember whether he had sexually assaulted the victim, at no point during the interview did Vice deny outright having done so.

¶13 For the last 12 minutes of the interview, neither officer referenced the polygraph results as Vice continued to answer direct questions about the assault. Vice responded with admissions and details such as what the victim was wearing, that he had been drinking and playing video games the night of the incident, and how he committed the assault.

¶14 At no time during the post-polygraph interview did either officer:

• raise his voice or use a hostile tone when speaking to Vice;

• make any threats or promise any inducements in order to elicit Vice's statements; or

• inform Vice that polygraph results are inadmissible in court.

At the conclusion of the interview, Vice was not arrested; instead Fisher drove him home and he once again sat in the front seat.

C. Procedural History

¶15 The day after the interview, the State filed a criminal complaint charging Vice with one count of sexual contact with a person under the age of 13, contrary to Wis. Stat. § 948.02(1)(e) (2019-20).⁷ Vice filed a motion to suppress as involuntary all of the statements he made during his post-polygraph interview, arguing that the tactics used in that interview were coercive "for one simple legal and factual reason[:] the detectives repeatedly told [him] he failed the polygraph examination before getting the statement they wanted." Vice never argued during the suppression proceedings that the polygraph examination and the post-polygraph interview were not discrete events.⁸

¶16 The circuit court suppressed Vice's statements, finding that "the State made a number of references to a failed polygraph at both times, and under certain circumstances, they created a coercive environment ... that becomes the fatal flaw in the totality of the circumstances of this confession." The State appealed.

¶17 For the first time on appeal, and contrary to his argument to the circuit court at the suppression hearing, Vice argued that his...