State v. Keith A. Davis
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2008 WI 71 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2006AP1954-CR State of Wisconsin, Plaintiff-Respondent, v. Keith A. Davis, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: June 26, 2008 December 12, 2007 Circuit Brown Donald R. Zuidmulder BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant there were argument by Chris A. Gramstrup, Superior. briefs and oral For the plaintiff-respondent there was oral argument by Sally L. Wellman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. 2008 WI 71 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2006AP1954-CR (L.C. No. 2004CF141) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 26, 2008 v. David R. Schanker Clerk of Supreme Court Keith A. Davis, Defendant-Appellant. Appeal from a judgment of the County, Donald R. Zuidmulder, Judge. ¶1 ANNETTE KINGSLAND ZIEGLER, Circuit Court for Brown is before Affirmed. J. This case the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2005-06). Keith A. Davis was charged with first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (2003-04).1 Davis sought to suppress all oral and written statements he provided to the Green Bay Police Department on December 17, 2003. The Brown County circuit court judge, Donald R. Zuidmulder, denied Davis's motion 1 All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. No. to suppress. 2006AP1954-CR Davis proceeded to trial and was convicted of first-degree sexual assault of a child. He now requests that his judgment of conviction be vacated and his case be remanded to the circuit court for a new trial, which would exclude his inculpatory statement. We decline that request and affirm Davis's conviction. ¶2 This statement was case so requires closely us to associated analysis that it must be suppressed. closely associated with the voice decide with whether the Davis's voice stress When a statement is so stress analysis that the analysis and statement are one event rather than two events, the statement must be suppressed. State v. Greer, 2003 WI App 112, ¶¶9-12, 265 Wis. 2d 463, 666 N.W.2d 518. As is the case with any statement, the statement must also survive constitutional due process considerations of voluntariness. ¶3 We conclude that Davis's statement was not so closely associated with the voice stress analysis as to render it one event. Rather, the examination and interview were two totally discrete events. Therefore, because his statement was given voluntarily and at a totally discrete interview, we conclude that Davis's statement was admissible. I ¶4 On November 21, 2003, Detective James Swanson of the Green Bay Police Department went to the residence of Keith A. Davis to speak with him about an alleged sexual assault of a juvenile, K.L.D., d.o.b. 12/14/96. into the house. Davis invited the detective The detective informed Davis that he was not 2 No. under arrest. Davis gave the detective a 2006AP1954-CR "tour" of his residence in response to the detective's request to look around for evidence. from the With consent, the detective collected bedding alleged victim's room container from a bathroom. as well as a shaving cream It is unclear what else may have been said during that visit, but when the detective asked Davis if he would be willing to come down to the police department to talk about the incident, Davis said that he would drive himself to the station later. The detective left, and on that same date, Davis drove to the Green Bay Police Department and talked with Detective Swanson in the interview room. At the police station, Davis was informed again that he was not under arrest and was free to leave at any time. At the station, Davis answered some questions but denied the allegations. Several times during that interview and before Davis left, he offered to take a polygraph examination. At the conclusion of the interview, Detective Swanson told Davis that he may follow up with him with respect to Davis taking a polygraph or voice stress analysis test. ¶5 On December 17, 2003, Detective Swanson returned to Davis's residence around 8:00 a.m. The detective asked Davis if he would further discuss the alleged incident regarding K.L.D. and whether Davis was still willing to undergo a polygraph or voice stress analysis test. Davis said that he would drive himself to the police station, but he wanted to shower first. The detective then returned to the police station. 3 No. ¶6 2006AP1954-CR Around 9:00 a.m., Davis left Detective Swanson a voice message that his car would not start, so he would be walking to the Green expected. Bay Police Department and would be later than Due to the weather that day and the route Davis would need to take in order to get to the police department, Detective Swanson decided to get in his car and see if he could find Davis walking. The detective intended to offer Davis a ride. At around 9:15 or 9:20 a.m., as the detective was driving south on Broadway, he saw Davis walking on the sidewalk. Detective Swanson. Davis waved at Detective Swanson made a u-turn, pulled up along side Davis, and asked him if he wanted a ride. Davis got in the front seat of Detective Swanson's unmarked squad car, and they proceeded to the Green Bay Police Department. ¶7 Once at the police station, Davis went into an interview room. Detective Swanson and Detective Swanson explained to Davis that he was not under arrest, did not have to talk with him, and could understood. leave at any time. Davis said that he Detective Swanson told Davis that he wanted to talk with him and have him take the voice stress analysis, which they had discussed before, and Detective someone else would conduct the test. Swanson told Davis that Davis was cooperative and wanted to talk. ¶8 Detective Swanson left the interview room and returned with Detective Buenning, the officer who conducted the test. After being introduced to Davis, Detective Buenning took Davis to another room, referred to as the "family room," for the voice stress analysis test. Detective Swanson did not accompany Davis 4 No. 2006AP1954-CR to the "family room" for testing, nor was he present during the test. ¶9 Once in the room where Davis was to undergo the voice stress analysis, Detective obtained Davis's consent.2 Buenning explained the test and Detective Buenning then asked Davis nine test questions, which consisted of two relevant questions, five irrelevant questions, and two control questions. actually helped formulate the following relevant Davis questions: (1) "Did you put your penis into [K.L.D.'s] vagina?"; (2) "Did you put your penis in [K.L.D.'s] mouth?" those were relevant questions. Davis agreed that For the test, Detective Buenning used a laptop, and a lapel microphone was clipped onto Davis's collar. After interview room. then, pursuant independently the test, Davis went back to the original Detective Buenning reviewed the results, and to standard evaluated the procedure, two other officers results. All three officers 2 Davis signed and dated a form entitled "Green Bay Police Consent For Computer Voice Stress Analyst." Presumably, this consent form is pursuant to Wis. Stat. § 942.06, "Use of polygraphs and similar tests." The form reads: I . . . Do hearby voluntarily consent to be [] examined by a trained computer voice stress analyzer of the Green Bay Police Department. I understand that the operation of this device involves the recording of my voice to specific questions. I have had the nature of the examination explained to me by Det. Buenning of the Green Bay Police Department. I agree to be recorded and tested using the computerize[d] voice stress analyst. I hereby release the results of the examination to the investigating law enforcement agency. 5 No. 2006AP1954-CR separately concluded that Davis was being deceptive. the presence of Davis, and in a separate room, Outside Detective Buenning discussed the results with Detective Swanson. He told Detective Swanson that he believed Davis had been deceptive. Both detectives then went to the original interview room and then brought Davis back to the "family room." ¶10 With Detective Swanson in the "family room," Detective Buenning told Davis that his answers were deemed deceptive and showed Davis the results from the computer repeatedly said that he did not do anything. charts. Davis Detective Buenning then asked Davis, "Well, if you told me yourself that her hymen was busted, wouldn't that support the results of the test?"3 Davis did not verbally respond but nodded his head up and down. Detective Buenning asked if he wanted to talk about this and Davis said "yes." Detective Buenning preferred to talk with Detective Swanson. he did.4 asked Davis if he Davis indicated that At that point, Detective Buenning stated, "I'm finished 3 The record does not indicate neither the direct examination nor the cross-examination of Detective Buenning the origin of this question. At the suppression hearing, this question is asked, but we are never told the context of the first time it was asked. It appears from the record that Detective Buenning and Davis had discussed this topic at some time. 4 While the record does not reflect Davis's exact words, the testimony at the suppression hearing confirms that Davis wanted to talk with Detective Swanson: Q. [Prosecutor] Did he agree to -- did wanted to talk to Detective Swanson? 6 he say he No. 2006AP1954-CR here" and then he closed up his laptop and left the room with all of the voice stress analysis equipment. Detective Buenning told Davis that he was finished with the test.5 ¶11 Detective Swanson and Davis were then alone in the "family room." Detective Swanson stated, "Keith, there's some things we need to talk about reference [K.L.D.]." Davis nodded his head yes, and they then went back to the original interview room. Detective Swanson left Davis in the interview room and then went to get statement forms. Approximately five minutes later, at about 11:00 a.m., Detective Swanson asked Davis to explain what happened with K.L.D. As Davis gave a statement, Detective Swanson wrote it on the statement form. While Davis gave mention his statement, Detective Swanson did not reference the voice stress analysis test or the results. or When Davis was finished talking, the detective gave Davis the written document to review. and then to Davis read the statement partly out loud himself. Detective Swanson had him read the beginning of the statement out loud in order to make sure that Davis could read the officer's writing. Detective Swanson A. [Detective Buenning] He wanted to talk to Detective Swanson. 5 While the record does not reflect Detective Buenning's exact words, the testimony at the suppression hearing confirms that Detective Buenning told Davis the test was over: Q. [Prosecutor] Did you actually tell Mr. Davis that you're finished with this test? A. [Detective Buenning] Yes. 7 No. 2006AP1954-CR explained to Davis that if anything was incorrect or needed to be changed, Davis should correct it. corrections. However, Davis made no After reading the statement, Davis signed both pages, and the statement was completed at about 11:45 a.m. ¶12 After Davis signed the statement, he "kind of broke down" and was crying. die." He stated that he "felt like he wanted to Around noon that day, Detective Swanson took Davis to the crisis center. Detective Swanson did not have further contact with Davis that day. ¶13 On February 16, 2004, Davis was charged with one count of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1). On May 28, 2004, a preliminary hearing occurred, and Davis was bound over for trial. Davis was arraigned on an information that charged him with one count of sexual assault. The information was amended on the day of trial, September 29, 2005, to include three counts of first-degree sexual assault of a child. ¶14 On June 11, 2004, Davis moved the circuit court to suppress all of his oral and written statements from December 17, 2003. On March 29, 2005, the circuit court conducted a hearing on the motion. On April 15, 2005, the circuit court issued an oral decision and denied the motion. The circuit court concluded that the statement was voluntarily given under Goodchild6 and that Miranda warnings were not required because 6 State ex rel. N.W.2d 753 (1965). Goodchild v. 8 Burke, 27 Wis. 2d 244, 133 No. 2006AP1954-CR Davis was not in custody at the time of the statement. The circuit court also concluded that, under Greer, the statement was admissible because it was distinct and separate from the polygraph or voice stress analysis. Relying on Greer, the circuit court cited the following four factors: (1) where was the statement taken; (2) who took the statement; (3) how soon after the polygraph examination was the statement taken; and (4) what was the manner in which the statement was taken. ¶15 The circuit court made a number of findings regarding the factors: First, it found that two officers were involved. One officer conducted the voice stress analysis and one officer secured the statement from Davis. Second, it found that the voice stress analysis had been completed when Davis made his statement. The circuit court stated, "in this case Mr. Davis was told that the polygraph or voice stress test had -- had ended which is also a condition of Greer, that it was over . . . ." his In addition, the circuit court found that Davis made statement conducted. in a separate room from where the test was Third, the circuit court found that while there was a nominal period of time between the statement and the voice stress analysis, under Greer and Johnson,7 time is the least of the factors to be considered. The circuit court concluded that, 7 State v. Johnson, 193 Wis. 2d 382, 535 N.W.2d 441 (Ct. App. 1995). 9 No. under a totality of the circumstances, the 2006AP1954-CR statements were admissible under Greer.8 ¶16 Davis proceeded to trial on September 29, 2005. A jury convicted him of all three counts of first-degree sexual assault of a child. On January 24, 2006, he was sentenced to 20 years of initial confinement followed by 10 years of extended supervision on each count to be served concurrent with each other. ¶17 Davis appealed his conviction. certified Davis's certification. appeal to this The court of appeals court, and we accepted the Specifically, the court of appeals stated, "we believe the law on this topic is in need of re-examination or, at a minimum, clarification." The court of appeals "respectfully suggest[ed] that the supreme court either clarify the rationale for the current rules or provide a new legal framework for analyzing this kind of evidence." II ¶18 they are However, We uphold the trial court's factual findings unless clearly the erroneous. application Greer, of 265 Wis. 2d 463, constitutional principles ¶9. to evidentiary or historical facts is a question of law that we review de novo. Id. Here, we review the voluntariness of the statements considering the principles of due process. State v. Hoppe, 2003 WI 43, ¶¶34-36, 261 Wis. 2d 294, 661 N.W.2d 407. 8 In While it appears that a curative instruction was not given in this case, circuit courts may consider giving a curative instruction when deemed appropriate. 10 No. addition, statutory interpretation which we review de novo. is also an 2006AP1954-CR issue of law, Megal Dev. Corp. v. Shadof, 2005 WI 151, ¶8, 286 Wis. 2d 105, 705 N.W.2d 645. III ¶19 Similar to polygraph testing, a voice stress analysis is based upon the theory that an individual undergoes certain physiological changes when being deceitful. Admissibility of voice stress evaluation Thomas R. Malia, test results or statements made during test, 47 A.L.R.4th 1202 (1986). of As a result, when being subjected to voice stress analysis, these changes can presumably be monitored and interpreted. stress analysis and polygraph testing have been Id. used Voice by law enforcement for many years. ¶20 Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka, Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently, "at least under the present state of the scientific art"). We see of no reason at this time to treat these two methods "honesty testing" differently. ¶21 Our analysis, as detailed below, primarily requires us to determine whether a defendant's statement was given at an interview totally discrete from the voice stress analysis. If the defendant's statement was given at an interview that was totally admission discrete is not from the voice automatically 11 stress analysis precluded. The test, its statement, No. however, is also subject voluntariness. interview is that analysis test the the statement from if totally and ordinary discrete Therefore, to statement is 2006AP1954-CR principles is the given at voice voluntarily of an stress given, the statement is admissible. ¶22 stress Davis analysis coercive." argues that cannot be As a result, "the administration performed Davis without argues that it of a being "any voice unduly inculpatory statement given post-examination[,] which is determined to be closely related to the testing, must also then be excluded as being unduly coercive and involuntary." post-examination Greer, his statement statement was must be closely stress analysis he took that day. Davis argues that his excluded associated because, with under the voice The State, on the other hand, argues that under Greer, the post-examination interview was not closely associated render it one event. with the voice stress analysis so as to The State asserts that under the totality of the circumstances, the statement was admissible. The State goes further to argue that a voluntary confession should always be admissible regardless of whether it was given before, during, or after a voice stress analysis. A ¶23 Under the totality of the circumstances, we conclude that Davis's statement was not so closely associated with the voice stress analysis test so as to render it one event; rather, the statement discrete events. and voice stress analysis were two totally Whether a statement is considered part of the 12 No. test or totally the whether a voice discrete stress event is largely analysis is over 2006AP1954-CR dependent at the upon time the statement is given and the defendant knows the analysis is over. Greer, 265 Wis. 2d 463, ¶12. To make this determination, the following factors should be weighed and considered: (1) whether the defendant was told the test was over; (2) whether any time passed between the analysis and the defendant's statement; (3) whether the officer conducting the analysis differed from the officer who took the statement; (4) whether the location where the analysis was conducted differed from where the statement was given; and (5) whether the voice stress analysis was referred to when obtaining a statement from the defendant. See id., ¶¶12-16 (articulating and applying these principles). ¶24 This test has its origins in McAdoo v. State,9 but in State v. Schlise10 the factors were more clearly articulated. The factors were more recently applied in State v. Johnson, 193 Wis. 2d 382, 535 N.W.2d 441 (1995) and Greer. ¶25 his In McAdoo, the defendant challenged the admission of statement asserting that it was not given voluntarily because it was given immediately after a polygraph examination. McAdoo v. State, 65 Wis. 2d 596, 608-09, 223 N.W.2d 521 (1974). This court concluded, "the polygraph can hardly be considered a strategy of the police officers since it was administered to the defendant upon his request," and the statement was given after 9 10 McAdoo v. State, 65 Wis. 2d 596, 223 N.W.2d 521 (1974). State v. Schlise, 86 Wis. 2d 26, 271 N.W.2d 619 (1978). 13 No. 2006AP1954-CR the test was over and the defendant knew the test was over. Id. The defendant underwent the first series of polygraph testing at 10:45 a.m., a lunch break was taken, and a second round of testing began at 2:00 p.m. Id. at 603. At 2:25 p.m., the defendant decided to discontinue the testing. Id. Due to that request, the testing equipment was removed from the defendant, turned off, and taken away. Id. After the examination's conclusion, the examiner proceeded to continue with questions. Id. The defendant "freely answered and talked for about forty- five minutes." Id. During the course of this discussion, the defendant admitted guilt. Id. The court concluded that, under Goodchild, the defendant's statement was voluntary and therefore admissible. ¶26 Id. at 605-08. In Schlise, we excluded statements made during a post- polygraph interview. N.W.2d 619 (1978). State v. Schlise, 86 Wis. 2d 26, 42, 271 The statements were excluded Stanislawski11 stipulation had been effected.12 Id. because no Immediately following that conclusion, however, we stated that "[t]his is not intended to suggest that all post-examination interviews between a subject and the examiner will be subsumed into the 11 State v. Stanislawski, 62 Wis. 2d 730, 216 N.W.2d 8 (1974). 12 Prior to this court's decision in Stanislawski, no polygraph evidence was admissible, but the court, in Stanislawski, eliminated the unconditional rejection of polygraph evidence so long as certain conditions were satisfied. Stanislawski, 62 Wis. 2d at 736-42. However, in State v. Dean, this court overruled Stanislawski. State v. Dean, 103 Wis. 2d 228, 278-79, 307 N.W.2d 628 (1981). 14 No. special category Stanislawski." of Id. polygraph evidence and The concluded that court distinguishable from McAdoo on its facts. ¶27 Specifically, 2006AP1954-CR in Schlise, fall within Schlise was Id. no evidence existed to suggest that the defendant was informed or was aware that the polygraph examination had ended. Id. While the defendant was not still connected to the machine, the court determined that this was not conclusive because the defendant was not connected to the machine during a pre-testing interview and that interview was considered part of the polygraph examination. The Id. officer used and referenced the charts and tracings generated from the polygraph examination. that even the polygraph Id. at 43. examiner The court found thought that the polygraph" examination was a continuation of the test. "post- Id. The examiner considered the subsequent interview to be the second part of a unified procedure. court concluded that the Id. Based on those facts, the post-mechanical interview was so closely associated with the mechanical testing, "both as to time and content," that it must be considered one event. ¶28 In Johnson, the police officer conducted the polygraph examination, defendant and to then, another Wis. 2d at 386. statements Id. were the same police officer room for questioning. escorted the Johnson, 193 The court of appeals concluded that because the made voluntarily and separately from polygraph examination, the statements were admissible. 388-89. the Id. at The court reasoned that the defendant was no longer attached to the equipment, was interviewed in a separate room 15 No. 2006AP1954-CR from where the examination took place, and the police officer did not refer back to the polygraph examination or tell the defendant that he failed the test during post-examination questioning in order to elicit an incriminating statement. Id. While the court of appeals acknowledged the short amount of time between the examination and interview, it nonetheless concluded that a distinct break occurred between the two events. ¶29 In Greer, the court of appeals stated Id. that "[t]he touchstone of admissibility is whether the interviews eliciting the statements are 'found to be examination which precedes them.'" (citation omitted). totally discrete from the Greer, 265 Wis. 2d 463, ¶10 Citing to McAdoo, Schlise, and Johnson, it identified two "core factors" to be considered when making this determination: whether the defendant made the statements after the test was over and whether the defendant was told the test was over. Id., ¶12. In consideration of these "core factors," the court of appeals found that prior to his confession, the defendant was told orally and in writing13 that the polygraph examination was over, and he was disconnected from the equipment, moved to another room, and one hour elapsed between the polygraph examination and the start of interrogation. 13 Id., The defendant signed a polygraph examination form that specified the examination was over; it read, "I completely reaffirm in its entirety my above agreement. . . . I also understand that any questions I may be asked after this point in time, and any answers I may give to those questions, are not part of the polygraph examination." State v. Greer, 2003 WI App 112, ¶4, 265 Wis. 2d 463, 666 N.W.2d 518. 16 No. ¶14. 2006AP1954-CR In addition, one police officer conducted the polygraph examination and a different examination interview. Id. officer conducted the post- Based on these facts, the court of appeals concluded that the examination and interview were two totally discrete required. events, and therefore, suppression was not Id., ¶¶14-16. ¶30 In the case at hand, the voice stress analysis and the interview were totally discrete events: Two different officers were involved one conducted the conducted interview. the examination Before any and the other statement was made, Detective Buenning stated, "I'm finished here," closed up his laptop, and left the room with all the voice stress analysis equipment. The interviewing officer did not refer to the polygraph examination or its results during the interview, and the examination and interview took place in different rooms. ¶31 While here, very little time passed between the examination and interview, time alone is not dispositive. For example, in McAdoo, the examination and interview were virtually seamless. However, in McAdoo, as in the case at hand, the interviewer never referred back to the polygraph examination or results, and the equipment was removed from the defendant. Even if little time passes between the two events, the statement may still be occurred. admissible See so Johnson, long 193 as two totally Wis. 2d at 389 discrete events (concluding that neither Barrera v. State14 nor Schlise proscribe a bright-line 14 Barrera v. State, 99 Wis. 2d 269, 298 N.W.2d 820 (1980). 17 No. rule of timing circumstances). two events specifically and instead look to the 2006AP1954-CR totality of the "[W]here there is a distinct break between the and the relate post-polygraph back sufficiently attenuated." to interview the . . . test, does events the not are Johnson, 193 Wis. 2d at 389. Unlike the case at hand, in Schlise the interview and examination were conducted by the same person, in the same room, and even the test examiner considered the procedure one event. Schlise, 86 Wis. 2d at 43. ¶32 Davis argues that the examination was not over when Detective Buenning, in the presence of Detective Swanson, told Davis that he failed the test and then "convinced" Davis that he should give a statement. However, the facts here reflect that the examination was complete when Detective Buenning talked with Davis about making a statement even if Davis had not been told the examination was over and the equipment had not been put away. That fact, however, does not render Davis's subsequent statement to Detective Swanson, at an interview totally discrete from the voice stress analysis, inadmissible given our totality of the circumstances approach. ¶33 First, while Detective Swanson was present in the "family room" when Davis indicated he wanted to talk, precedent clearly holds that the same officer may conduct both the examination and the interview so long as the two events are separate. See McAdoo, 65 Wis. 2d at 603, 608-09; Johnson, 193 Wis. 2d at 386, 388. Therefore, even though Detective Swanson was present in the "family room" when Davis said he wanted to 18 No. 2006AP1954-CR talk, this does not preclude the subsequently made statement from being admitted. Second, Davis only agreed to give a statement when he was in the "family room" with both detectives, he did not begin giving a statement until he returned from the "family room" to the original interview room and five minutes had passed. Therefore, there is no concern that Davis began giving a statement to both detectives when he was confronted with his untruthfulness and as a result locked himself into a particular set of facts that he could not change once he began giving a statement to Detective Swanson. examination and interview are two Third, so long as the totally discrete events, "letting the defendant know that he or she did not pass the examination, or letting the defendant so conclude, does not negate that the examination and the post-examination interview are, as phrased by Schlise, 'totally discrete' events rather than 'one event.'" Greer, 265 Wis. 2d 463, ¶16. Fourth, at no time during the interview did Detective Swanson relate back to or rely on the voice stress evaluation or its results. ¶34 Under the totality of the circumstances and applying the Greer test, the voice stress analysis and Davis's statement were two totally discrete events. As a result, the statement is admissible under these facts so long as it is voluntary. 19 No. 2006AP1954-CR B ¶35 discrete Even if the examination from one another, a and interview statement must are still totally be deemed admissible considering ordinary principles of voluntariness and constitutional Wis. 2d at considered principles 44-45 here (stating because Stanislawski); Johnson, "general of rules interview"); of see due that the Wis. 2d admissibility 9 See voluntariness statement 193 also process. at apply Christine was M. need not excluded 389 to Schlise, the 86 be under (stating that post-polygraph Wiseman, Nicholas L. Chiarkas & Daniel D. Blinka, Criminal Practice and Procedure § 20.42, 673 n.3 (1996) (discussing post-polygraph confessions). ¶36 the "A defendant's statements are voluntary if they are product of deliberateness conspicuously of a free and choice, unequal unconstrained as opposed confrontation to in will, the which reflecting result the of a pressures brought to bear on the defendant by representatives of the State exceeded the Wis. 2d 294, Burke, 27 defendant's ¶36; see Wis. 2d 244, ability generally 133 to resist." State ex N.W.2d 753 Chiarkas & Blinka, supra, § 20.42. rel. (1965); Hoppe, 261 Goodchild v. 9 Wiseman, We must then inquire whether the statements were the result of coercion or otherwise improper conduct by law enforcement. Hoppe, 261 Wis. 2d 294, ¶37. If neither coercion nor other improper conduct was used to secure the statement, it is deemed voluntary. ¶37 This court applies a Id. totality of the circumstances standard to determine whether a statement was made voluntarily. 20 No. 2006AP1954-CR Id., ¶38. We must balance the personal characteristics of the defendant, such as age, education, intelligence, physical or emotional condition, and prior experience with law enforcement, with the possible pressures that law enforcement could impose. Id., ¶¶38-39. Possible pressures to consider include the length of questioning, general conditions or circumstances in which the statement was taken, whether any excessive physical or psychological pressure was used, and whether any inducements, threats, methods, or strategies were utilized in order to elicit Id., ¶39. a statement from the defendant. ¶38 In the case at hand, we conclude, as did the circuit court, that the defendant's statement was voluntary. contains no evidence that would give rise to The record any concerns regarding his personal characteristics. Davis, at the time this occurred, was the indicates that education, we 43 years Davis must old. only defer While possesses to the a trial defendant's middle court's brief school level judgment that Davis was not at such an educational disadvantage to render his personal characteristics at issue. ¶39 We also do not find evidence that law enforcement used coercion or other forms of improper conduct in order to elicit Davis's incriminating statement. The duration of questioning was not lengthy, no physical or emotional pressures were used, and no inducements, employed to ascertain threats, an methods, incriminating defendant. 21 or strategies statement from were the No. ¶40 Davis's participation was voluntary 2006AP1954-CR in every way: Davis agreed to talk and take the voice stress analysis when he was in his own home. Davis came to the police station on his own terms including when and how he intended to get there. He received a ride from law enforcement when his car would not start. Davis waved at the officer passenger seat of the police car. and rode in the front Once at the police station, he was told he was not under arrest and he was free to leave at any time. After the voice stress analysis, Davis said he wanted to talk, and he chose which officer he was going to talk with and give his statement. In short, Davis set the timing and the circumstances of coming to the police station, taking the test, and to whom he would ultimately give his statement. ¶41 he Davis argues that Detective Buenning told Davis that failed the voice stress analysis and referred to that information to "undermine the defendant's will to resist the official accusation." conclusion. However, the record does not support that In a very brief amount of time, Davis was told that the analysis indicated Davis was being deceptive, he was asked a question regarding his truthfulness, he was asked if he wanted to talk, and Davis said that he wished to speak with Detective Swanson. Compare with Schlise, 86 Wis. 2d at 40-41. Separately, he gave a statement to Detective Swanson, which he read and approved. ¶42 Merely analysis or statement per se because polygraph one test coercive. is administered does The 22 not proper a render inquiry voice a is stress subsequent not only No. whether a test statement was was taken, given at a but rather, distinct whether event 2006AP1954-CR a and subsequent whether law enforcement used coercive means to obtain the statement. An important inquiry continues to be whether the test result was referred to in order to elicit an incriminating statement. Johnson, statement 193 Wis. 2d to at Detective 389. Here, Buenning, question that the test was over. to another room. In the Davis did tester. See not make a There is no Davis had gone from one room addition, the interviewer, Detective Swanson, never referenced the examination or its results during the time Davis gave his statement. used to elicit the statement. No coercive measures were Accordingly, Davis's statement was voluntary. C ¶43 In its certification to this court, the court of appeals expressed concern that no underlying rationale existed for excluding statements during or closely polygraph examination or voice stress analysis. related to a In its brief, the State also asserted that no justifiable reason existed for excluding statements voice stress analysis. made during a polygraph examination or The State, citing to a number of cases 23 No. 2006AP1954-CR from other jurisdictions,15 argues that Wisconsin should adopt a voluntariness approach to statements made before, during, or after any form of honesty testing. ¶44 While some prior precedent from this court and the court of appeals may not have clearly or perhaps even properly articulated the underlying rationale 15 for excluding statements The State cites to other jurisdictions that have rejected the approach that voluntary statements made during a polygraph must be excluded merely because they were given during a polygraph examination. See Hostzclaw v. State, 351 So. 2d 970, 971-72 (Fla. 1977), overruling State v. Cunningham, 324 So. 2d 173 (Fla. Dist. Ct. App. 1975); State v. Blosser, 558 P.2d 105, 107-08 (Kan. 1976); Rogers v. Commonwealth, 86 S.W.3d 29, 36 (Ky. 2002); Commonwealth v. Hall, 14 S.W.3d 30, 31-32 (Ky. Ct. App. 1999); State v. Blank, 955 So. 2d 90, 109-10 (La. 2007); State v. Bowden, 342 A.2d 281, 285 (Me. 1975); State v. Erickson, 403 N.W.2d 281, 283-84 (Minn. Ct. App. 1987); State v. Smith, 715 P.2d 1301, 1309-10 (Mont. 1986); People v. Sohn, 539 N.Y.S.2d 29, 31 (N.Y. App. Div. 1989); State v. Green, 531 P.2d 245, 252 (Or. 1975); Commonwealth v. Schneider, 562 A.2d 868, 870-71 (Pa. Super. Ct. 1989). See also Joel E. Smith, Admissibility in evidence of confession made by accused in anticipation of, during, or following polygraph examination, 89 A.L.R.3d 230, § 3 (Westlaw 2007). 24 No. 2006AP1954-CR made during honesty testing,16 the underlying rationale is simply that our state legislature has 16 generally precluded such a For example, in Schlise, statements were considered part of the polygraph examination and not a discrete event, and therefore, the statements were excluded because no Stanislawski stipulation had been entered and, therefore, no polygraph evidence could be utilized. Schlise, 86 Wis. 2d at 43-44. However, Schlise seems to have misinterpreted Stanislawski if it interpreted Stanislawski to pertain to anything more than test results or testimony about the test results. This court's Stanislawski decision pertained to polygraph results and expert testimony based upon the examination; it did not address statements made during a polygraph examination. See Stanislawski, 62 Wis. 2d at 736, 741-44. The court stated: "Henceforth, in Wisconsin, expert opinion evidence as to polygraph tests may be admitted in a criminal case subject to the following conditions." Id. at 741. Further support for the proposition that Stanislawski only considered test results and expert opinion on test results is that Stanislawski withdrew the "unconditional rejection of polygraph evidence" that was Id. at 736, 741. However, established in State v. Bohner. Bohner and its progeny addressed only polygraph test results and expert opinion regarding those results. See State v. Bohner, 210 Wis. 651, 658, 246 N.W. 314, 317 (1933) (stating that "the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made"); State v. Baker, 16 Wis. 2d 364, 368, 114 N.W.2d 426 (1962) (citing to Bohner and stating that "[t]he results of such a test are inadmissible, as the state concedes"). Cases relying on Schlise only perpetuate its misinterpretation and fail to acknowledge the existence of Wis. Stat. § 905.065. See, e.g., Greer, 265 Wis. 2d 463, ¶9 (failing to cite to Wis. Stat. § 905.065 but citing to Schlise and stating that "anything that a defendant says during what is considered to be part of the polygraph examination is not admissible"). Prior to the creation of Wis. Stat. § 905.065, admissibility of statement made during a polygraph examination seems to have been governed by principles articulated in Turner v. State, 76 Wis. 2d 1, 23-26, 250 N.W.2d 706 (1977). 25 No. scenario under the plain language of Wis. 2006AP1954-CR Stat. § 905.065.17 Wisconsin Stat. § 905.065(2) states, "[a] person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject." ¶45 Therefore, the legislature has decided that statements made during honesty testing are generally excluded, but if those statements are given at an interview that is totally discrete from the honesty testing, under the factors articulated in this opinion, statement and is the statement admissible. was given However, 17 voluntarily, if the then the statements and In its certification to this court, the court of appeals brought our attention to Wis. Stat. § 905.065 stating that "this statute was created by the legislature during the Stanislawski era, at a time when polygraph examination results were admissible [under certain conditions]. . . . To the extent that this statute still has applicability in the post-Stanislawski era, it may provide defendant's with a method . . . of suppressing statements they made during an examination." We agree that this statute generally precludes statements made during honesty testing. We note, however, that the legislative history of the statute does not appear to reference Stanislawski. Moreover, the privilege was not included in the original draft, but rather, it was subsequently added by the judiciary committee. The driving force behind the statute appears to be employment situations, but this does not limit its application in this case. While test results are no longer admissible as a result of our decision in Dean, which prohibited the Stanislawski stipulation approach of admitting polygraph evidence, Dean, 103 Wis. 2d at 278-79, this does not eliminate the applicability of Wis. Stat. § 905.065 to statements made during honesty testing. Our decision in Dean did not address Wis. Stat. § 905.065. "[R]egardless of any stipulation the results of 'lie-detector tests' are inadmissible in Wisconsin courts because they fail the test of relevance." 7 Daniel D. Blinka, Wisconsin Evidence § 5065.1 (2d ed. 2001). 26 No. examination are not totally discrete events but 2006AP1954-CR instead are considered one event, then the statements must be excluded by virtue of Wis. Stat. § 905.065. IV ¶46 We conclude that Davis's statement was not so closely associated with the voice stress analysis as to render it one event. Rather, the examination and interview were two totally discrete events. Therefore, because Davis's statement was given voluntarily and at a totally discrete interview, we conclude that Davis's statement was admissible. By the court. The judgment affirmed. 27 of the circuit court is No. ¶47 (dissenting). ANN WALSH BRADLEY, J. 2006AP1954-CR.awb I agree with the majority that Davis's statements are admissible if the voice stress examination and the post-examination interview in which Davis made the inculpatory statement are totally discrete events. In addition, I agree with the majority that determining whether they are totally discrete events requires an examination of the totality of circumstances test, as explained in State v. Greer, 2003 WI App 112, ¶11, 265 Wis. 2d 463, 666 N.W.2d 518. ¶48 because totality However, it I alters of the disagree the with essential circumstances the inquiry test. The majority's and analysis misapplies proper inquiry the and application of the totality of the circumstances test require the conclusion that the examination and the interview here were not totally discrete. A review of our precedent further supports that conclusion. I therefore respectfully dissent. I ¶49 This is not a case in which the examination clearly took place in one room and the interview clearly took place in another room. Rather it is a case where there was an ongoing process with both the examination and the interview occurring in two places. ¶50 A review of the relevant facts here is helpful as a preface to the analysis. While at the police station, Detective Swanson met with Davis in an interview room. Swanson left and returned with Detective Buenning. Davis was escorted by Buenning to the family room where the conducted in Swanson's absence. 1 voice stress examination was No. ¶51 2006AP1954-CR.awb After the test, Davis was returned to the interview room. Buenning deceptive. told Swanson Both detectives that then he believed escorted Davis Davis had back been to the family room. ¶52 While in the family room, with Swanson present, Buenning confronted Davis and told him that his answers had been deceptive, Davis showing protested continued to him that press charts he him. of had the not test done Eventually results. Although anything, Buenning Davis capitulated and acknowledged the results. Buenning then asked Davis if he wanted to talk. Davis responded "yes." Buenning asked if Davis preferred to talk to Swanson, and Davis indicated that he did. Then Buenning said "I'm finished here," closed his laptop, and left the family room with the examination paraphernalia. ¶53 Next, Swanson spoke to Davis, indicated that they needed to talk, and took Davis back to the interview room. He left the room to retrieve forms, returning within five minutes. When Swanson returned, Davis made the statements at issue here. II ¶54 The majority states that the issue in the case is "whether Davis's statement was so closely associated with the voice stress analysis that it must be suppressed." Majority op., ¶2. It analysis asserts is that generally a statement made inadmissible by during virtue a of voice Wis. stress Stat. § 905.065, id., ¶45, but ultimately concludes that the statement 2 No. 2006AP1954-CR.awb at issue here was made after the analysis was completed and that the statement is admissible.1 ¶55 According to the majority, the question of whether Davis's statement is admissible depends on whether the statement and the voice stress examination were two discrete events. Id., ¶23. In order to determine whether the examination and the statement are totally discrete, the majority applies a totality of the circumstances test based on Greer. ¶56 The majority concludes that there were discrete events. It bases its conclusion on the facts that there were two officers finished, involved, closed and his that laptop, Buenning stated and with left that the he was examination equipment before Davis made his statement. Id., ¶30. Further, the majority explains examination or statements, and results that that Swanson during the the did time examination not that and refer Davis Davis's to the made the statements occurred in different rooms. 1 The majority concludes that the underlying rationale for excluding statements made during honesty testing is that "our state legislature has generally precluded such a scenario under the plain language of Wis. Stat. § 905.065." Majority op., ¶44. The majority's conclusion seems problematic for two reasons. First, its conclusion implies that the opinion should resolve the present case by interpreting and applying § 905.065. However, the majority does not purport to do this. Second, the majority resolves this case by relying upon a line of cases, none of which interprets or applies § 905.065. How can the rationale underlying a rule established in these cases be a statute that none of the cases ever mentions? 3 No. 2006AP1954-CR.awb A ¶57 The problems with the majority's analysis begin with its statement of the inquiry. In State v. Schlise this court determined that the admissibility of statements made after a polygraph examination turns on whether the interview in which statements are made is totally discrete from the examination. 86 Wis. 2d 26, 42, 271 N.W.2d 619 (1978). Following Schlise, the court of appeals in Greer stated that the admissibility turns on "whether the interviews eliciting the statements are found to be totally discrete from the examination which precedes them." 265 Wis. 2d 463, ¶10 (internal quotations omitted). ¶58 At several points in the opinion, the majority correctly states that the inquiry is whether the examination and interview were two discrete events. However, in the analysis section the majority alters the test set forth in Schlise and Greer and instead asks whether the examination and Davis's statement are discrete events. Majority op., ¶23. ¶59 By altering the test, the majority implies that the post-examination interview commenced when Davis began making his statement. That assumption is untenable. The majority recognizes that the voice stress examination was over when Davis was unhooked from the voice stress analysis equipment. See id., ¶9. What it fails to acknowledge, however, is that when Buenning and Swanson escorted Davis to the family room and confronted him with the test results, they were initiating the post-examination interview. 4 No. ¶60 Schlise and Greer demand that we 2006AP1954-CR.awb analyze whether Davis's statements occurred during an interview that was totally discrete from the examination. Thus, the proper analysis should focus on whether which Davis was Swanson, is majority does the in totally not interview, the including family discrete examine room from the with the the period both Buenning examination. interview as during and Yet including the that period. B ¶61 The application majority of the opinion test it is sets also problematic forth. It sets in its forth five factors from Greer that are relevant in determining whether the voice stress examination and the interview are totally discrete: (1) whether the defendant was told the test was over; (2) whether any time passed between the analysis and the defendant's statement; (3) whether the officer conducting the analysis differed from the officer who took the statement; (4) whether the location where the analysis was conducted differed from where the statement was given; and (5) whether the voice stress analysis was referred to when obtaining a statement from the defendant. Majority op., ¶23. As noted, in Greer the factors refer to the "interview" rather than the "statement." ¶62 Rather than examining the five factors in a straightforward way, determining whether each factor indicates that the events were totally discrete, the majority lists several factors that indicate that the events are discrete. Id., ¶30. When it reaches the factors that indicate that the events are related, it discounts them on the ground that the events are totally discrete. 5 No. ¶63 2006AP1954-CR.awb A close analysis of factors, however, reveals that the examination and the interview here were not discrete events. I examine each in turn. 1. Was the defendant told the examination was over? ¶64 Buenning did not give Davis any indication that the examination was interview, when over he until into "I'm stated well the finished post-examination here." Moreover, Buenning's statement that "I'm finished here" is equivocal. Both Buenning and Swanson were in the family room at the time, Buenning had just asked Davis if he would prefer to talk to Swanson, and Davis had responded that he would. Thus, Buenning's statement can be interpreted to mean that he was finished, not that the examination was finished. 2. Did any time The majority pass between the examination and the interview? ¶65 Buenning packing up focuses the on voice the stress five minutes analysis between equipment and Davis giving his statement to Swanson. Although it concedes that the short period of time is an indication that the events are not discrete, the majority merely states that "time alone is not dispositive." Id., ¶31. ¶66 The important point, however, is that after Davis agreed to give a statement, only enough time passed for him to be escorted to a different room and for Swanson to retrieve some paperwork. After the break, things picked up precisely where they had left off, with Davis agreeing to give the statement that had been elicited by Buenning in the family room. It is 6 No. 2006AP1954-CR.awb incorrect to suggest that there are totally discrete events when the break between them was so short and the subject of discussion (that Davis had previously not told the truth and would now agree to give a truthful statement) was identical before and after the break. 3. Was the officer conducting the examination different from the officer conducting the interview? ¶67 The majority maintains that different officers conducted the exam and the interview. However, as noted, the interview began when both Buenning and Swanson were in the family room with Davis. Both were present when Davis capitulated and conceded the results of the test, agreeing to give a statement. ¶68 Although only Swanson was present in the room when Davis gave his statement, Swanson merely asked Davis to give his statement after Davis had already agreed to give it while they were in the family room. The interview (that is, all of the discussion regarding Davis's actions and the examination) took place in the family room with Buenning. Thus, while there were two officers involved, both conducted the interview. Because Buenning was involved in both the examination and the interview, the officer conducting the examination was not different from "the" officer conducting the interview. 4. Was the location of the examination different from the location of the interview? ¶69 Although the post-examination interview began in the same room in which the examination 7 was conducted, Davis was No. 2006AP1954-CR.awb moved to the interview room to give his statement to Swanson. More importantly, though, this is a case in which there was an ongoing process. ¶70 Davis was at the police station for the purpose of the examination. He was moved back and forth between the interview room and the family room several times. Davis had been in both rooms with both officers. As noted above, this is not a case in which the examination and the interview each clearly took place in a single room. Rather, it is ongoing an examination process, including a case in which and an there was interview, which occurred in two places. 5. Were the examination results used in obtaining the statement? ¶71 There is no question that the results of the examination were used to obtain Davis's statement. The majority maintains that "so long as the examination and interview are two totally discrete events, letting the defendant know that he or she did not pass the examination . . . does not negate that the examination discrete and post-examination events." examination results Majority is a op., factor interview ¶33. to are . . . totally However, consider in the use of determining whether there are two discrete events. Discounting the factor on the ground that there are two discrete events just begs the question. ¶72 The majority also maintains that "at no time during the interview did Detective Swanson relate back to or rely on the voice stress evaluation or its results." Id. The reason is 8 No. 2006AP1954-CR.awb that Swanson did nothing but ask Davis to recite the statement that Buenning had elicited from Davis a few minutes prior. ¶73 The factors cited by the majority therefore indicate that there were not two totally discrete events. Whether Davis was told the exam was over is unclear; there was essentially no time breaking involved in up interviewing; the events process the the and two rooms involved; Buenning were both officers performed each used were most of the both the for examination and the interview; and the examination results were used during the interview to elicit Davis's statement. C ¶74 Finally, conclusion that a the review of examination prior and cases the supports interview were the not discrete events. This case closely resembles Schlise, where an officer conducted a polygraph examination and a post-examination interview that were both a part of a longer, seamless process. That process included a lengthy pre-examination interview, the actual polygraph examination, and the post-examination interview, all conducted by one officer. 86 Wis. 2d at 42-43. The post-examination interview involved the officer confronting the defendant with the results of the test, thereby eliciting an incriminating statement. Id. at 40. This court determined that the examination and the interview were so closely associated in time and content that they had to be considered one event. Id. at 43. ¶75 The present case is similar. Davis was given the voice stress examination, which was over when he was unhooked from the 9 No. equipment and escorted to the interview 2006AP1954-CR.awb room. Swanson and Buenning brought Davis back into the family room and confronted him with the results of the test in a post-examination interview. During the interview Buenning used the results of the test to elicit a statement from Davis. Davis was taken back to a room he had been in and out of during the entire process so that he could put his statement in writing. ¶76 process, Thus, the as in Schlise, post-examination there was interview a was single, conducted ongoing by the officer that conducted the examination, and the results of the test were used to elicit an incuplatory statement. The primary difference between this case and Schlise is that this case involved two officers, both of whom were involved in the entire process. Further, while there were two rooms involved, each had been used throughout the ongoing process. ¶77 This case is also different in important ways from Greer and State v. Johnson, 193 Wis. 2d 382, 535 N.W.2d 441 (Ct. App. 1995), in which the examinations and interview were discrete. In Greer, one officer spoke to the defendant the day before the defendant was given a polygraph examination. The examination was conducted by a different officer. After it was completed, the defendant was told orally and in writing that the examination was over. 265 Wis. 2d 463, ¶¶3-4. An hour passed and the defendant was moved to a different room. There, the first officer conducted an interview in which the defendant confessed. Id., ¶7. The court of appeals determined that the examination and the interview were not totally discrete. Id., ¶16. 10 No. ¶78 was 2006AP1954-CR.awb In Greer the statement that the examination was over clear, whereas here the statement was equivocal. The defendant in that case had an hour to differentiate between the examination and interview, whereas Davis had only long enough for Swanson to retrieve paperwork. The officers in Greer played distinct roles, whereas both officers here were involved throughout the process. Although this case involves two rooms, as did Greer, throughout it distinct process. the is The in that Greer both court rooms were determined used that the officer's use of the examination results during the interview did not alone prevent the examination and interview from being discrete. Id., ¶14. Nonetheless, it recognized that using the results counts against a determination that the events are totally discrete. Id., ¶11. ¶79 The court of appeals determined in Johnson that there were discrete events even though there was only conducting the examination and the interview. one officer 193 Wis. 2d 382, 389. It based the determination on the facts that the defendant was moved to a different room, there was a distinct break between the two events, and the officer did not refer to the test results in order to elicit the inculpatory statement. Id. There is no indication that the interview room had been used throughout the process, as is the case here. More importantly, in this case it was the use of the test results that elicited Davis's statement. Further, Davis's statement to Swanson came directly after Buenning had induced him to give it, with only enough time passing for Swanson to retrieve paperwork. 11 No. ¶80 2006AP1954-CR.awb Because this case is similar to Schlise, and distinct from Greer and Johnson, the case law favors the conclusion that the examination and the interview were not discrete events. III ¶81 In sum, the majority has altered the focus of the inquiry set forth in Greer and Schlise. As a result of skewing the focus, it incorrectly assumes that the post-examination interview commenced when Davis made his statement. Additionally, the majority misapplies the totality of the circumstances test. I conclude the proper inquiry and application of the totality of the circumstances test, together with our prior case law, requires the conclusion that the examination and the interview here were not discrete events. I therefore respectfully dissent. ¶82 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 12 No. 1 2006AP1954-CR.awb
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