STATE of Wisconsin, Plaintiff-Respondent, v. Keith A. DAVIS, Defendant-Appellant.
No. 2006AP1954-CR
Supreme Court of Wisconsin
Decided June 26, 2008.
Oral argument December 12, 2007.
2008 WI 71 | 751 N.W.2d 332
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.
¶ 1. ANNETTE KINGSLAND ZIEGLER, J. This case is before the court on certification by the court of appeals, pursuant to
¶ 2. This case requires us to decide whether Davis‘s statement was so closely associated with the voice stress analysis that it must be suppressed. When a statement is so closely associated with the voice 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. Davis invited the detective into the house. The detective informed Davis that he was not under arrest. Davis gave the detective a “tour” of his residence in response to the detective‘s request to look around for evidence. With consent, the detective collected bedding
¶ 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.
¶ 6. 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 Bay Police Department and would be later than expected. 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
¶ 7. Once at the police station, Detective Swanson and Davis went into an interview room. Detective Swanson explained to Davis that he was not under arrest, did not have to talk with him, and could leave at any time. Davis said that he understood. 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 Swanson told Davis that someone else would conduct the test. 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 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 Buenning explained the test and obtained Davis‘s consent.2 Detective Buenning then asked Davis nine test questions,
¶ 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 charts. Davis repeatedly said that he did not do anything. 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
¶ 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 his statement,
¶ 12. After Davis signed the statement, he “kind of broke down” and was crying. He stated that he “felt like he wanted to die.” 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
¶ 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
¶ 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. . . .” In addition, the circuit court found that Davis made his statement in a separate room from where the test was conducted. 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, under a totality of the circumstances, the statements were admissible under Greer.8
¶ 17. Davis appealed his conviction. The court of appeals certified Davis‘s appeal to this court, and we accepted the certification. 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. We uphold the trial court‘s factual findings unless they are clearly erroneous. Greer, 265 Wis. 2d 463, ¶ 9. However, the application of constitutional principles 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. In addition, statutory interpretation is also an issue of law, which we review de novo. 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
¶ 20. Principles applicable to polygraph testing are equally applicable to voice stress analysis. See
¶ 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 discrete from the voice stress analysis test, its admission is not automatically precluded. The statement, however, is also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an interview that is totally discrete from the voice stress analysis test and the statement is voluntarily given, the statement is admissible.
¶ 22. Davis argues that “the administration of a voice stress analysis cannot be performed without it being unduly coercive.” As a result, Davis argues that “any 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.” Davis argues that his post-
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 and voice stress analysis were two totally discrete events. Whether a statement is considered part of the test or a totally discrete event is largely dependent upon whether the voice stress analysis is over at the 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).
¶ 25. In McAdoo, the defendant challenged the admission of his 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 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. Id. at 605–08.
¶ 26. In Schlise, we excluded statements made during a post-polygraph interview. State v. Schlise, 86 Wis. 2d 26, 42, 271 N.W.2d 619 (1978). The statements
¶ 27. Specifically, in Schlise, 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. Id. The officer used and referenced the charts and tracings generated from the polygraph examination. Id. at 43. The court found that even the polygraph examiner thought that the “post-polygraph” examination was a continuation of the test. Id. The examiner considered the subsequent interview to be the second part of a unified procedure. Id. Based on those facts, the court concluded that the post-mechanical interview was so
¶ 28. In Johnson, the police officer conducted the polygraph examination, and then, the same police officer escorted the defendant to another room for questioning. Johnson, 193 Wis. 2d at 386. The court of appeals concluded that because the statements were made voluntarily and separately from the polygraph examination, the statements were admissible. Id. at 388–89. The court reasoned that the defendant was no longer attached to the equipment, was interviewed in a separate room 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. Id.
¶ 29. In Greer, the court of appeals stated that “[t]he touchstone of admissibility is whether the interviews eliciting the statements are ‘found to be totally discrete from the examination which precedes them.‘” Greer, 265 Wis. 2d 463, ¶ 10 (citation omitted). 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
¶ 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 examination and the other conducted the interview. Before any 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 admissible so long as two totally discrete events occurred. See Johnson, 193 Wis. 2d at 389 (concluding that neither Barrera v. State14 nor Schlise proscribe a bright-line rule of timing and instead look to the totality of the circumstances). “[W]here there is a distinct break between the two events and the post-polygraph interview does not specifically relate back to the... test, the events are sufficiently attenuated.” 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
¶ 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.
B
¶ 35. Even if the examination and interview are totally discrete from one another, a statement must still
¶ 36. “A defendant‘s statements are voluntary if they are the product of a free and unconstrained will, reflecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bear on the defendant by representatives of the State exceeded the defendant‘s ability to resist.” Hoppe, 261 Wis. 2d 294, ¶ 36; see generally State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965); 9 Wiseman, Chiarkas & Blinka, supra, § 20.42. 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. Id.
¶ 37. This court applies a totality of the circumstances standard to determine whether a statement was made voluntarily. 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.
¶ 38. In the case at hand, we conclude, as did the circuit court, that the defendant‘s statement was voluntary. The record contains no evidence that would give rise to any concerns regarding his personal characteristics. Davis, at the time this occurred, was 43 years old. While the defendant‘s brief indicates that Davis only possesses a middle school level education, we must defer to the trial court‘s 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, threats, methods, or strategies were employed to ascertain an incriminating statement from the defendant.
¶ 40. Davis‘s participation was voluntary 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 and rode in the front passenger seat of the police car. Once at the police station, he was told he was not under arrest and he was free to leave at any
¶ 41. Davis argues that Detective Buenning told Davis that he failed the voice stress analysis and referred to that information to “undermine the defendant‘s will to resist the official accusation.” However, the record does not support that conclusion. 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 because one is administered a voice stress analysis or polygraph test does not render a subsequent statement per se coercive. The proper inquiry is not only whether a test was taken, but rather, whether a subsequent statement was given at a distinct event and 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. See Johnson, 193 Wis. 2d at 389. Here, Davis did not make a statement to Detective Buenning, the tester. There is no question that the test was over. Davis had gone from one room to another room. In addition, the interviewer, Detective Swanson, never referenced the examination or its results during the time Davis gave his statement.
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 related to a polygraph examination or voice stress analysis. In its brief, the State also asserted that no justifiable reason existed for excluding statements made during a polygraph examination or voice stress analysis. The State, citing to a number of cases 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 ratio-
¶ 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
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 of the circuit court is affirmed.
¶ 47. ANN WALSH BRADLEY, J. (dissenting). 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. However, I disagree with the majority‘s analysis because it alters the essential inquiry and misapplies the totality of the circumstances test. The proper inquiry and application of the totality of the circumstances test require the conclusion that the examination and the interview here were not totally
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 voice stress examination was conducted in Swanson‘s absence.
¶ 51. After the test, Davis was returned to the interview room. Buenning told Swanson that he believed Davis had been deceptive. Both detectives then escorted Davis back 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, showing him charts of the test results. Although Davis protested that he had not done anything, Buenning continued to press him. Eventually 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,
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 asserts that a statement made during a voice stress analysis is generally inadmissible by virtue of
¶ 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 involved, and that Buenning
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
¶ 60. Schlise and Greer demand that we analyze whether Davis‘s statements occurred during an interview that was totally discrete from the examination. Thus, the proper analysis should focus on whether the interview, including the period during which Davis was in the family room with both Buenning and Swanson, is totally discrete from the examination. Yet the majority does not examine the interview as including that period.
B
¶ 61. The majority opinion is also problematic in its application of the test it sets forth. It sets 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
¶ 63. 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 over until well into the post-examination interview, when he stated “I‘m finished 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 pass between the examination and the interview?
¶ 65. The majority focuses on the five minutes between Buenning packing up the voice stress analysis 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
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 was
¶ 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 a case in which there was ongoing process, including an examination and an 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 and post-examination interview are... totally discrete events.” Majority op., ¶ 33. However, the use of examination results is a factor to consider in 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 that Swanson did nothing but ask Davis to recite the statement that Buenning had elicited from Davis a few minutes prior.
C
¶ 74. Finally, a review of prior cases supports the conclusion that the examination and the interview were 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 equipment and escorted to the interview 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
¶ 76. Thus, as in Schlise, there was a single, ongoing process, the post-examination interview was conducted by the officer that conducted the examination, and the results of the test were used to elicit an inculpatory 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.
¶ 78. In Greer the statement that the examination was over was 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, it is distinct in that both rooms
¶ 79. The court of appeals determined in Johnson that there were discrete events even though there was only one officer conducting the examination and the interview. 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.
¶ 80. 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
¶ 82. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
Notes
Q. [Prosecutor] Did he agree to—did he say he wanted to talk to Detective Swanson?
A. [Detective Buenning] He wanted to talk to Detective Swanson.
Q. [Prosecutor] Did you actually tell Mr. Davis that you‘re finished with this test?
A. [Detective Buenning] Yes.