State v. Ward

Decision Date30 June 2009
Docket NumberNo. 2007AP79-CR.,2007AP79-CR.
Citation767 N.W.2d 236,2009 WI 60
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Jennifer L. WARD, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by T. Christopher Kelly and Kelly, Habermehl & Bushaw, S.C., Madison, and oral argument by T. Christopher Kelly.

For the plaintiff-respondent the cause was argued by Mark A. Neuser, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

We review an unpublished per curiam decision of the court of appeals,1 which affirmed the circuit court's judgment2 convicting defendant Jennifer L. Ward (Ward) of first-degree reckless homicide. The dispositive issue in this case is whether incriminating statements Ward made during the police investigation subsequent to the death of her seven-week old nephew were not voluntary and therefore, should have been suppressed. We conclude that once in police custody, Ward knowingly, voluntarily and intelligently waived her Fifth Amendment rights to silence and to counsel and that under the totality of the circumstances, her statements were voluntarily made because neither her personal characteristics nor police conduct resulted in coerced statements. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2 On the morning of December 1, 2004, Ward called 911 to inform police that her seven-week old nephew, who had been left in Ward's exclusive care by the child's parents five days earlier on November 26, 2004, had stopped breathing. Tragically, the child was later pronounced dead. Ward was taken to the hospital along with the child, and once there, was interviewed by Detective Sergeant Glenn Schaepe (Schaepe) of the Oneida County Sheriff's Department.

¶ 3 During this recorded interview, which started at 9:30 a.m., Schaepe repeatedly informed Ward that she was not under arrest, and was free to leave at any time. In addition, hospital personnel came and went at various times throughout the interview. However, Ward's family members were not permitted to enter the room. While Ward was being questioned, she made incriminating statements suggesting that she was responsible for the death of her nephew. Schaepe also told her that her daughter had told him that she had seen Ward shaking the child; however, Ward's daughter saw Ward shake the child only when Ward was administering cardiopulmonary resuscitation (CPR) at the direction of 911 phone staff.

¶ 4 Later that day, at around 2:30 in the afternoon, Ward accompanied the police to an interrogation room at the police station, where she was informed of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ward signed a Miranda waiver form, and was then questioned for several hours by Schaepe and his partner, Detective Sergeant Jim Wood (Wood). During this interview, Ward made incriminating statements to the police, further implicating her in the death of her nephew.

¶ 5 While Ward was being questioned, Attorney Jeffrey Jackomino (Jackomino), who had been retained by Ward's husband to represent Ward, appeared at the police station and requested to speak with Ward. Schaepe left the interrogation room, spoke with Jackomino, and informed Jackomino that he would not be permitted to speak with Ward because Ward had not personally invoked her right to counsel. Ward never unequivocally asked for an attorney, and Jackomino was never permitted to see Ward while she was being questioned. The officers also did not inform Ward that her husband was outside of the interrogation room, even though she asked several times about him.

¶ 6 Around 5:20 p.m., the detectives ceased questioning, and Ward was informed that she would be spending the night in jail. Schaepe informed Ward that she would not be permitted to make any phone calls, although at approximately 7:00 p.m., Shaepe instructed the jailer to inform Ward that she would be permitted to call a lawyer if she so requested. Ward never asked to call a lawyer.

¶ 7 The following morning, Ward asked to speak with the detectives. She was brought into the interrogation room, and Schaepe and Wood questioned her a third time. Ward again was given Miranda warnings. She asked several times to speak with her husband, but the officers did not permit her to do so. Ward never asked to speak with a lawyer, however, and she once again made incriminating statements implicating herself in the death of her nephew. Ward was subsequently charged with first-degree reckless homicide.

¶ 8 Prior to trial, Ward moved to suppress her statements. She challenged the interview at the hospital, arguing that her statements were involuntary because she had been in pain at the time and had suffered one or more seizures. Ward also argued that her statements were inadmissible because of Schaepe's incomplete and misleading statement about the circumstances under which Ward's daughter said she had seen Ward shaking the baby.

¶ 9 With respect to her statements at the police station, Ward argued that they were involuntary because (1) she was not initially permitted to make phone calls during the night in jail; (2) she was not informed that her lawyer wanted to speak with her; (3) she was not informed of her husband's status and location; and (4) she was not adequately informed of her right to counsel when she discussed calling a lawyer.

¶ 10 The circuit court denied Ward's suppression motion with respect to all three questioning sessions. Regarding the first session in the hospital, the court concluded that Ward was not in custody because her movement was not restricted; she was told several times that she was not under arrest and was free to leave at any time; and hospital personnel were entering and exiting Ward's room on a regular basis. Because Ward was not in custody, Miranda warnings were not required, and the circuit court merely considered the voluntariness of Ward's statements under the totality of the circumstances.

¶ 11 The circuit court found that Ward did not possess personal characteristics suggesting that she was particularly susceptible to coercion, and found that Schaepe did not use tactics sufficient to result in coercion. Even though Schaepe did not tell Ward the circumstances under which Ward's daughter said that she saw Ward shaking the baby, the court noted that police deception does not necessarily make subsequent statements inadmissible. As a result, the court held, based on the totality of the circumstances, that Ward's statements were voluntary and therefore admissible.

¶ 12 With respect to the second questioning session, which took place at the police station, the State conceded that Ward was in custody. The circuit court concluded that Ward knowingly, voluntarily and intelligently waived her rights to remain silent and to have counsel present. The court held that Ward's statements made subsequent to that waiver were voluntary because Ward did not possess personal characteristics that made her vulnerable, and the detectives' methods, while aggressive, did not constitute coercion.

¶ 13 The circuit court further held, under the United States Supreme Court's decision in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), that the detectives' failure to inform Ward of Attorney Jackomino's presence outside of the interrogation room did not render her statements inadmissible. In addition, the circuit court concluded that Ward's equivocal statements about calling a lawyer were insufficient to invoke the Fifth Amendment right to counsel. Finally, the court held that the detectives' evasiveness in response to Ward's repeated inquiries regarding her husband did not affect the admissibility of her statements because there is no constitutional right to have anyone other than counsel present during custodial interrogation. In light of all these circumstances, the court concluded that Ward's statements at the second interview were admissible.

¶ 14 In analyzing the third interview, the circuit court began by noting that even though Ward was initially denied the opportunity to make any phone calls subsequent to the second interview, she was later informed by the jailer that she could call a lawyer if she wished. As a result, the court rejected Ward's argument that she was held "incommunicado." The court once again found that, once the third questioning session actually began, Ward was cognizant of her rights before speaking to the police. As a result, Ward's statements were admissible.

¶ 15 Following denial of Ward's motion to suppress, the case proceeded to trial, and a jury convicted Ward of first-degree reckless homicide. Ward challenged her conviction in the court of appeals, arguing that the circuit court had erred by failing to suppress her statements. She advanced many of the same arguments before the court of appeals that she had put forth in the circuit court. The court of appeals affirmed her conviction.

¶ 16 We granted review and now affirm.

II. DISCUSSION
A. Standard of Review

¶ 17 Whether a waiver of the rights to silence and to counsel was knowingly, voluntarily and intelligently made is a question of law for our independent review. State v. Badker, 2000 WI App 27, ¶ 8, 240 Wis.2d 460, 623 N.W.2d 142. In deciding whether Ward's incriminating statements should have been suppressed, we must determine whether those statements were made voluntarily. "The question of voluntariness involves the application of constitutional principles to historical facts." State v. Hoppe, 2003 WI 43, ¶ 34, 261 Wis.2d 294, 661 N.W.2d 407. We uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748 (citing State v. Fonte, 2005 WI 77, ¶ 11, 281 Wis.2d 654, 698 N.W.2d 594). A finding of historical fact is not...

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