*1 Plaintiff-Respondent- Wisconsin, State Petitioner, Defendant-Appellant. Stanley A. Samuel, Court Supreme 3, 2001. Decided argument Oral October No. 99-2587-CR. 25, 2002. April 2002 WI 423.) (Also reported in 643 N.W.2d *5 plaintiff-respondent-petitioner For the the cause argued by attorney Herman, was general, Lara M. assistant Doyle,
with whom on the briefs was James E. attorney general. defendant-appellant
For the there was a brief Robert R. S.C., Henak and Henak Law Office, Milwau- argument by kee, and oral Robert R. Henak. petitioner, ¶ 1. ANN WALSH BRADLEY,J. The published Wisconsin, State of appeals seeks review of a court of reversing judgment decision the circuit court's against Stanley defendant, conviction entered charges Samuel, on assault, abduction, sexual and custody.1 interference with The State asserts that the appeals concluding court of erred the same suppressing involuntary standard for a defendant's apply statement should also suppress when defendant seeks to allegedly involuntary statement of a wit- ness. Samuel, See State v. App 2001 WI 240 Wis. 2d (Ct. 2000) App. (reversing remanding N.W.2d 565 judgment Winnebago and order of the Circuit Court for
County, Williams, Judge). Thomas S. are different the standards conclude that We an alleg- to suppress a defendant seeks
and that when *6 coercive statement, police the witness involuntary edly that such egregious at must be issue misconduct a matter of are unreliable as that statements produces that when a defendant addition, In determine we law. standard, this under to statements suppress seeks Velez, is set forth State to follow procedure proper (1999). Finally, apply we 1, 2d 589 N.W.2d Wis. at to the witness statements have identified test we admitted they were properly and conclude issue reverse the court Accordingly, into evidence. appeals.
H-H L., minor, then a left 1996, Tisha January friend. Samuel, 47-year-old a County with Winnebago a in Milwaukee for about Tisha stayed Samuel and throughout left and traveled week, then Wisconsin In March 13 months Midwestern states. several and taken Wisconsin, Samuel Tisha were after left they the State of Missouri. custody by into and on March pregnant, 4. Tisha was Wisconsin, her was born. baby returned to after she day held before a later, hearing March was days Two it was determined court commissioner which her father. Further discus- would be with placed Tisha was left to baby on the of Tisha's placement sion issue At following hearing. an intake conference attorney. Oth- conference, Tisha was represented included for all or of the conference part ers present Steven two Sagmeister, of Oshkosh officer City police father, Stelzner, and his workers, Cathy social Tisha's was said accounts differ as what girlfriend. Although immediately or conference, during at the at some time following conference, Tisha was told to contact Sagmeister give regard him a statement with happened previous year." "what had After the con- go ference, Tisha was allowed to home with her father baby temporarily placed Stelzner, and the was foster care. Sagmeister
¶ 5. Tisha's father and Officer made arrangements Sagmeister for Tisha to meet with on day, gave tape 13,1997. March On that Tisha recorded Sagmeister statement to and one of the social workers, Schraufnagel, Rod at the station. She said that sexually Winnebago she and Samuel had been active in County they before left the state. At the time of that activity, age sexual Tisha was under 16.2 morning, ¶ 6. The next *7 March another hear- ing was held before the commissioner, court at which baby Following Tisha's ing, was returned to her. the hear- Sagmeister give Officer asked Tisha if she would a day tape second statement because the from the first very had not turned out well. Tisha and her father agreed, Sagmeister Schraufnagel and and conducted Again, another recorded interview with Tisha. Tisha indicated that she had sexual relations with Samuel in prior leaving Winnebago County. gave
¶ 7. Tisha a third on statement March Sagmeister when Officer came to her residence. After questioning Sagmeister Tisha, summarized her an- signed. in swers a written statement that Tisha The written statement shows that Tisha and Samuel first September had sexual in relations the middle and also had sexual in relations twice Milwaukee after leaving Winnebago County January 1996.
2 The information September shows Tisha's date of birth as 1980. formally charged
¶ interfer- 8. was with Samuel custody, sexual abduction, ence with and assault suppress He in limine to all of Tisha's child. moved hearing motion, At the on Samuel statements. suppressed argued that Tisha's statements should be they coer- the result of threats or because were attorney, father, her and Stelzner Tisha, cion. her surrounding regard to with the circumstances testified and the at which both the intake conference times gave Tisha her statements. motion, 9. court denied the deter- The circuit standing
mining was without to assert that that Samuel were coerced violation of her Tisha's statements rights. concluded, the court Instead, constitutional weight jury credibility to determine the for the was of Tisha's statements. trial, witness, called Tisha At State as that Samuel had a sexual
and she testified she and relationship, they not have inter- but did sexual April 1996, March or months course until which was after was she left Wisconsin with Samuel. While Tisha proceeded examination, still under direct the State prior impeach her her with inconsistent statements: Q true, however, Tisha, you given Isn't it also have prior you three statements this date which indicated sexually in September became active with Mr. Samuel of 1995? *8 Yes,
A I I think did. The State Tisha March showed her 1997 written questions her it. statement and asked several about saying Tisha maintained she did not remember anything regard where, to when, in the statement with and or how often she Samuel had sexual relations. She later testified that the statements were not true, but given pressured that she had them because she felt incriminate Samuel at the intake conference. Sagmeister, father, Tisha's Stelzner, Officer Schraufnagel gave testimony also relevant to the surrounding circumstances Tisha's statements. Al- though perceptions the witnesses each had different as improperly pressured, to whether Tisha was no one expressly recalled that she was told she would lose her baby implicated unless she Samuel. jury
¶ 12. The
convicted Samuel on all three
charges.
brought
postconviction
Samuel
a
motion,
again arguing that Tisha's statements should have been
suppressed
they
because
were coerced. The circuit court
denied
regard-
the motion. The court determined that
less of whether Tisha's statements were coerced, Sam-
standing
challenge
question
uel had no
them, and the
any
jury.
witness coercion was best left to the
appealed,
appeals
13. Samuel
and the court of
Citing
reversed.
Gonzales,
United States v.
164 F.3d
(10th
1999),
1285, 1289 n.1
Cir.
the court reasoned that
police methods of coercion that are "offensive when
against
magically
used
any
an accused do not
become
against
Referring
less so when exerted
a witness."
to the
test for
Clappes,
involuntariness set forth in State v.
(1987),
136 Wis. 2d
questioning." determining Id. In whether a confession voluntary, inquiry is the essential is whether the con- procured fession was via coercion. Id. at 235-36. appeals The court of remanded Samuel's case for the Clappes whether, circuit court to determine under the involuntary. test, Tisha's statements were
II
proper
¶ 15. We are asked to determine the
stan
involuntary
dard under which a witness's
statements
suppressed
must be
at the trial of a criminal defendant.
suppressed
question
Whether evidence should be
is a
Anderson,
constitutional fact. See State v.
441, 447,
165 Wis. 2d
(1991);
Bermudez,
477 N.W.2d277
State v.
(Ct. App. 1998).
338, 346,
Wis. 2d
hHI—II—H
right
¶ 17. The State contends that a defendant's
process
only
to due
is offended
where witness state-
by
ments are extracted
"extreme coercion or torture."
(7th
Chiavola,
United States v.
1984).
744 F.2d
1273
Cir.
argues
It
that absent such extreme circum-
jury's
weigh
it is
stances,
role to
cred-
assess
ibility.
involuntary
Samuel asserts that
witness state-
subject
suppression
ments should be
to the same
of
rule
involuntary
aas
criminal defendant's
See
confession.
Clappes,
argues
first to the standard advanced the State. We are not right convinced, asserts, as the State that a defendant's process only to due bewill offended where witness against statements used the defendant from derive police conduct to that amounts extreme coercion or only torture. The "blood of the accused not is inquisition." of hallmark an unconstitutional Blackburn (1960); Raphael Alabama, v. 361 U.S. 206 also see (Alaska 2000). Although State, v. 994 P.2d Supreme the United States Court in Blackburn was referring similarly to defendant, we decline to hold necessary the blood of a is a hallmark witness Instead, unconstitutional trial. we determine are there by circumstances egregious statements where witness derived misconduct short of extreme coercion suppressed uphold or torture müst in order to be reject short, fairness to a defendant. fundamental high satisfy setting too due test as the bar the State's process. by Next, we to the standard advanced turn suppressed
Samuel, should be that witness statements applied a defendant's on the same test as based begin examining rights protected by confession. We by suppression along purposes with the served involuntary It is well established that confessions. voluntary confessions criminal defendants must be as evidence at trial. See State order be admitted (1972); Hunt, 734, 740, 2d 193 N.W.2d858 see Wis. (1963). *11 Lynumn Illinois, 528, also v. 372 U.S. 534 suppression requiring ¶ rule of involun 20. The long grounded tary in been the confessions has rights. process v. due See Brown Missis defendant's (1936). Malloy sippi, 278, addition, in v. 297 U.S. 286 (1964), Hogan, Arizona, 1, 378 U.S. 7 and Miranda v. (1966), Supreme 436, 384 U.S. 464 n.43 the Court right against the to Fifth Amendment linked rule the self-incrimination. purposes 21. Several related have been cited "deep-rooted
support of rule. These include the the feeling obey that must the while enforc- the law ing Fulminante, law," 279, the Arizona v. 499 U.S. 293 (1991); government should be notion that "by produce against required its to evidence the accused independent by cruel, own simple rather than labors
expedient compelling mouth," of it from own his Miranda, 460; and, that 384 U.S. at concern state- product likely of more ments are coercion are voluntary inherently untrustworthy than be state- (1959). Spano York, ments, v. New U.S. 360 320 38 rights purposes apply ¶ 22. These do not all suppress involuntary when defendant seeks wit Bohlinger, ness statements. See LaFrance v. 499 F.2d (1st 1974); Vargas, 33-34 Cir. State v. 420 A.2d (R.I. 1980). right against A nondefendant witness's generally play self-incrimination is not at the trial of the defendant. "When the defendant seeks exclude the fruit of the coerced statement of another.. . the protecting policy being compelled of the defendant from convicting People to aid the state in him is not at stake." (Cal. 1995). Badgett, P.2d 877, Likewise, government produce by idea that the must evidence its independent by compelling own labors rather than justify from the mouth the accused not does seem to suppression by of statements those other than the accused. disagree Therefore, we with Samuel that the
Clappes governing involuntary test confessions can suppression alone dictate the for standard of involun- tary rights protected witness statements. Because the purposes suppression and the served of a defendant's considering apply sup- confession do not all when pression something of a witness's statement, additional sup- is needed before a witness's statement will be pressed. Clappes suppression The test sets the for bar Although agree witness statements too low. that the suppression requires of witness statements those *12 involuntary Clappes, statements be under re- also quires something more. Often, witness statements that are some compelled inherently
sense are neither nor unreliable product example, the of For misconduct. we have general right that, rule, held as a a defendant's to a fair by testimony by trial not is violated the admission of accomplice defendant's even where the State has ex-
39
accomplice
granted
pressly
to the
in ex
concessions
testimony.
change
Nerison,
v.
136
2d
State
Wis.
for the
(1987). "[C]ross-examination, not
1
37, 45, 401 N.W.2d
weight
challenging
proper
exclusion,
for
the
is the
tool
testimony."
credibility
accomplice
Nerison, 136
of
and
Miller,
447,
231
45;
2d
see also State v.
Wis. 2d
Wis.
at
(Ct.
1999).3
App.
605
567
465,
N.W.2d
suppressing
statements must
25. A rule
witness
admissibility
recognize
of evidence such as accom-
the
testimony
plice
protect a defendant's due
and also
Although
rejected
process right to a fair trial.
we have
setting
acknowledge
low,
Samuel's test as
the bar too
purposes
by
suppression of
of the
served
the
that some
equally
involuntary
apply
of
the context
confessions
involuntary
Both
maxim that
witness statements.
the
police obey
enforcing
the
the
and the need
law while
law
inherently
to
based on
unreliable
avoid convictions
spring
apply
the
at issue
evidence
whether
statements
criminally
the
the
accused or another.
from
mouth of
Although
parallel"
invol-
there is no "absolute
between
involuntary
untary
and
confessions
witness state-
point
LaFrance,
there
at
ments,
499 F.2d
is
apply to
which some of the same considerations
both.
3
accomplice testimony,
When the State relies on
protected
long
as
as there is:
right
defendant's
a fair trial is
(1)
agreements
full
with the
disclosure of the terms of
struck
(2)
witnesses;
opportunity
for full cross-examination of those
agreements
concerning the
and the effect of those
witnesses
(3)
testimony
witnesses;
agreements
of
and
on
instructions
carefully
jury
weight
credibility
cautioning the
evaluate the
testimony
witnesses
have been induced
such
who
testify against
agreements
with the state
defendant.
Nerison,
(1987);
2d
State v.
136 Wis.
when
misconduct rises to an
level
process.
Hanson,
that it
due
offends
State
136 Wis. 2d
(1987) (citing
195, 211,
involuntary
in
confessions,
some
they
in other cases
are reliable. See
unreliable,
cases be
Agnello,
173,
427
164,
v.
226 Wis. 2d
593 N.W.2d
State
(1999);
2d
350
State,
v.
Wis.
N.W.2d
J.G.
(1984).
involuntary
The
can
said
witness
same
be
of
Involuntary
suppressed
are
re
confessions
statements.
gardless
of
the truthfulness
a confession in
of
Twomey,
Lego
case.
404 U.S.
individual
See
(1972); Agnello,
However,
conclude that when defendant seeks to product coercion, witness statements as the police in misconduct must be more than that set forth produces egregious Clappes. must such that it It be The are unreliable as a matter of law. statements that egregious shown, because, be as we have coercion must police typically "egregious" it that offends is misconduct process. police due Our concern is with misconduct nature, undermines in the reli- that, its confidence ability of a witness's statements. Witness statements by police lying no obtained methods that induce have justice place system a in our because conviction based on evidence undermines the fundamental unreliable process short, fairness of defendant's trial. due demands that the State not marshal its resources against an accused a manner that results on conviction based unreliable evidence obtained through egregious police practices. Upon
¶ 31. an examination of the case law and parties' arguments, glean several factors to determining consider in egregious whether misconduct is produces such that statements that are (1) unreliable as a matter of law. These factors include (2) say; whether a witness was coached on what investigating questions whether authorities asked bla- *15 tantly particular tailored a answer, to extract see (3) Gonzales, 164 1289; F.3d at whether the authorities consequences made a threat with that would be unlaw- Tingle, if out, ful carried see United States v. 658 F.2d (9th 1981) (4) ;4 Cir. 1335-36 whether the witness (5) given express pro quid quo; an was and unlawful separate legitimate purpose whether the State had a for (6) Tingle, conduct, its 1337; and, 658 F.2d at whether represented by attorney the witness was an at the time statement, Merkt, of the coercion or see F.2d 764 at 269. presence weighs The suppression of the first four in factors favor of presence
while the
against
of the second
fac-
two
weighs
Application
tors
it.
of these
other
help
relevant factors will
to ensure that it is unreliable
suppressed.
help
guaran-
evidence that is
It will also
tee that the State does not obtain convictions based on
practices that offend fundamental fairness.
4
v. Tingle,
that United States
recognize
We
(9th
1981),
involuntary
Cir.
involved
confessions
a defen
dant; nevertheless,
helpful
identifying
we deem its
discussion
are
suppression
criteria that
useful
in a
under
determination
apply
test
to Samuel.
application
of the factors
In cases where
statements
determination
witness
results
suppressed, the
nevertheless
not be
defendant
issue will
ability
credibility of the witness
to test the
retains
through, among
approaches,
other
cross-
statements
jury.
Nerison,
2d at
See
136 Wis.
examination before the
"sifting
tool for
is an essential
45. Cross-examination
thereby protecting a
of the witness" and
the conscience
rights
Bauer, Wis. 2d
at trial. State v.
defendant's
(1982) (citing Mattox v.
n.3,
IV proper procedure next address for 33. We parties circuit courts and to follow when defendant witness should be wishes to assert suppressed statements *16 we have identified. under the standards Velez, refer 224 Both Samuel and the State Wis. 2d presented providing procedure. a model The in as issue Velez whether a defendant is entitled an eviden- was tiary hearing upon allegation an that the State inten-
5 Here, jury a of the standard instruc the received version credibility, that tion on which includes an instruction witness testimony. falsifying for See jury the should consider motives JI —Criminal 300. Wis
tionally "manipulated system" juvenile to avoid jurisdiction charge court and a defendant anas adult. Velez, here, Id. at 6. In as it was the defendant's due process rights were that at issue. See id. at 14. agree parties Therefore, 34. with the that procedures applied in outlined Velez should be correctly
this case. As the circuit court
observed
its
suppression
although
decision on
motion,
Samuel's
jury
normally
judge
credibility
is
the sole
of the
and
given
weight
statements,
to witness
[exceptions
finding
are made
a
where
threshold
is
court,
by
made
presentation
jury
since
to the
would
expose
might
them to evidence which
otherwise
be
principles.
barred
constitutional
procedures
protect
The Velez
will
a defendant's due
process rights
preserving
judicial
while also
scarce
by eliminating unnecessary evidentiary
resources
hear-
ings. See
a motion to facts sufficient show involuntary Clappes a that statement was under egregious that misconduct issue is such produces statements that are unreliable as Velez, matter of See 224 Wis. 2d at If law. the motion alleges true, if which, facts would entitle the defendant evidentiary relief, to hearing. then the circuit an court must hold Bentley, Id.; see State v. 2d also 201 Wis. (1996). However, if N.W.2d50 the motion does allege facts, not sufficient circuit court has the deny evidentiary hearing upon discretion to find ing any following one is circumstances (1) present: allege the defendant failed to sufficient *17 question fact; of material to raise facts the motion (2) conclusory allegations; only presented the defendant (3) conclusively the demonstrates that the record or Velez,224 2d at to relief. Wis. defendant is not entitled 17-18.
¶ this the defendant has not met 36. Even where production has the circuit court initial of and burden hearing, deny evidentiary in order an the discretion to "carefully properly discretion, exercise that must arguments record, motion, counsels' consider proof, Velez,224 2d at of and the law." Wis. offers and/or (quoting Garner, 534-35, 2d State Wis. 1996)). (Ct. App. Moreover, when there 558 N.W.2d916 possibility that the defendant will estab- is a reasonable evidentiary hearing, an the factual basis at lish provide with the circuit court must opportunity the defendant develop the record. Id. 18. words, will cases where the other there be denying properly its court cannot exercise discretion evidentiary hearing holding first a nonevi- an without dentiary suppress. hearing motion to on the defendant's Velez, 17. The the defen- 224 Wis. 2d at facts that See and the determinations the circuit dant must establish informed court must make will be standard factors we have identified. question of who 38. We must also address persuasion has
bears the burden of once the defendant evidentiary necessitating a factual established basis hearing. argues persuasion Samuel that the burden acknowledges State, should lie with the but preponderance of the evi- level that burden is agree. dence. We *18 suggested pro- Velez, 39. this court due that by placing production
cess
not offended
a
was
burden of
on the defendant because the State bore the ultimate
regard
persuasion
government
burden of
with
the
at
See
misconduct
issue.
V question ¶ 40. earlier, As noted of whether suppressed evidence be a must under constitutional ultimately question standard is a that this court deter- independently. Anderson, mines Wis. 2d Upon an examination of case, the record this of conclude as a matter law that Tisha's statements suppressed. should not have been No reasonable view of support the evidence can the conclusion that Tisha's by egregious statements were coerced methods that produced statements unreliable as a matter of law. postconviction Indeed, the circuit court at the motion hearing, hearing opined evidence, after all of the product police Tisha's statements were not the coer- cion. The circuit court stated: honesty, case, in all the Court wouldn't be in this
[A]nd totally coercion. This is a different able to even find say a than witness comes type circumstance say you tell if don't us mother and she's hear, taking your child. we want to we're what minor in which the mother was a on This is case run, gave the run and was who birth while on acts for subsequently returned. It was her which her initially custody taken into ... acts child was was originally being which led there issue beforehand remain with her or not. as to whether the child would *19 in fact well that she not told light And as was here, to this say just cooperate but to doesn't what to say that has to what say court that it's been inferred she they say get her or her child back. want to she won't apply Nonetheless, have the factors we arriving ultimately identified, the same result as any We first note that there is little if circuit court.6 specifically Tisha was coached on credible evidence that say questions or the authorities' were what to blatantly compel implicate in order to her to
tailored contrary, Tisha's father testified that Samuel. On the Sagmeister worker, nor the neither Officer social should, case "at the The dissent concludes that Samuel's least," very remanded to the circuit court for a determination be allegedly coerced should be of whether Tisha's statements overlook, however, appears Dissent at 50. It suppressed. already were opined that the circuit court statements in product police paragraph coercion. As noted above not the honesty, the 40, the court stated that "in all Court circuit find It be a futile wouldn't be able even coercion." would the circuit to remand this case for determination exercise misconduct here was court of whether coercive produced statements unreliable as egregious such that court stated it able matter of law when the circuit "wouldn't be to even find coercion."
Schraufnagel, any- say Tisha told that she needed to get thing particular baby in in order to her back. Tisha's testimony repeatedly focused on the fact that she was "cooperate" general. Although told she had to in at one point testimony in her she indicated that someone said get baby implicated she would not her back until she pressed, Samuel, when she could not who remember had said this or whether those were exact words the speaker had used. Similarly,
¶ 42. the record not does show that expressly ever authorities threatened Tisha with baby, although regard- possibility loss of her that was a implicated less of Tisha whether Samuel. Stelzner thought testified that she there in- was "blackmail" why explain any volved, but was unable to detail she anyone so believed. The record does not show that presented quid quo, illegal pro Tisha with an such as a promise keep baby that she would be able to her if she agreed implicate addition, Samuel. In the factor of representation by weigh strongly counsel does not Although favor of either Samuel or the State. Tisha was represented by attorney conference, at the intake represented she was not at other times in which Samuel *20 alleges she was coerced. Finally, perhaps convincingly
¶ 43. and most in separate legiti- case, this the had a authorities involved questioning purpose regard mate for Tisha with to They proper place- Samuel. needed to determine the baby, depended ment of her on an of which assessment flight whether was a risk and whether she be she could properly trusted care for her child. Al- newborn though recognize may there be a cases where legitimate purpose questioning for a witness is trans- pretext illegitimate for a criminal inves- into
formed support tigation, not a in case does such the record this conclusion.
VI suppression of ¶ sum, test for the 44. In the Clappes-phis court, in is test. The witness statements a totality applied Clappes, a of circumstances test the assessing a confession is whether defendant's when voluntary. Clappes requires a test court look
The response police well the the defendant's as as both personal misconduct, the characteris- "balance against pressures imposed tics of the defendant upon the police in to induce him to him order questioning." respond at 236. to the 136 Wis. 2d rights pur- protected ¶ and the 45. Because the by suppression poses of a defendant's confession served considering suppression apply of a do all when not something statement, is needed a more before witness's something suppressed. statement will be That witness's degree police misconduct. more is Clappes, totality Thus, as a of circum- 46. in applied considering suppres- stances test when is personal characteris- sion of a witness statement. The against a must balanced the conduct tics of witness be police pressuring a to induce of the witness order response. However, we determine that when defen- suppress dant statements as involun- seeks to witness greater tary, misconduct must be coercive necessary suppression Clappes for than that under egregious it must be a defendant's confession: such produces that are unreliable as a statements matter of law. addition, we determine that where the suppress statements,
defendant seeks to witness *21 parties procedure must follow the set forth in Velez. Finally, we conclude that on the us, record before egregious Tisha's statements were not derived from produce that misconduct would statements un- Accordingly, reliable as a matter of law.7 we reverse the appeals. of court
By appeals the Court.—The of the of decision court is reversed. (dissenting). 48. BABLITCH, WILLIAM A. J. I
agree majority's requires with the standard which suppression they of witnesses' statements when are through egregious police coerced misconduct such that are statements rendered unreliable aas matter of considering totality law, while of the circumstances. Majority op. ¶ 46. at impossible However, it is for me reconcile majority enunciated standard with failure theof totality given remand of the circumstances
present. This does not me as a strike close case all. As degree result, ask, lower courts will with some of confusion, it, if these facts do do not what does? appeals The court required concluded that it was reverse Samuel's convictions for abduction and interference because, custody with if the court circuit were to determine on inadmissible, that remand Tisha's statements were the admis may improperly sion the statements have undermined credibility jury's Tisha's and tainted the assessment of the evidence at trial. Because we conclude Tisha's statements properly jury, were before the need not address Samuel's argument improperly the admission of statements tainted his conviction on the abduction interference with reason, custody charges. For the same we do not address the argument State's that the admission of Tisha's statements was regard harmless error with two charges. to those *22 very- ¶ at should, I case the conclude that this 50. questions least, The record raises serious remanded. be during employed interrogation the as to the methods immediately A deter- thereafter. intake conference police egregious the conduct was mination on whether only judge credibility that circuit involves matters of evidentiary hearing. Further, the can determine at totality examine the of the circum- circuit court must Accordingly, making I its determination. when stances majority respectfully to the mandate of the dissent opinion.1 following telling. sequence
¶ The of events is 51. baby 10, 1997, is born. On March On March Tisha's placed baby in a taken from Tisha and the is "cooper- repeatedly refuses to foster home after Tisha day, police. "cooperates" The ate" next Tisha with by answering questions implicate that with the respect relationship to her sexual with Samuel with baby is her on March Samuel. Tisha's returned to 1997. told must No one denies that Tisha was she police.
cooperate cooperate But with the how? Was implicate for to that had to reasonable Tisha believe she baby The court Samuel or lose her forever? circuit determination. The circuit court never reached this merely standing determined that had no Samuel objection to the of Tisha's statement. raise an admission "overlook," majority in dissent did not as This stated dissent, response that circuit has opinion's court "already opined product the statements were not the Majority op. at The circuit court police coercion." n. 6. opinion issued that without the benefit of the new standard majority opinion. circuit court could enunciated The hardly at the apply a standard was not even existence opined. time it so very go
At the least, this case should back for an evidentiary hearing following procedural standards adopted by majority Velez, from State v. 224 Wis. 2d (1999). majority op. 1, 589 N.W.2d9 ¶¶ See 33-39. ¶ 53. There is more in record, this none of which challenged, support my has been view that Samuel producing has met his burden in evidence to show egregious evidentiary conduct sufficient to force an hearing. particular, attorney, David Keck, Tisha's personal impression testified that it was his that Tisha *23 give police regarding had to a statement to the unlawful relationship get sexual with Samuel in order to her baby back. In addition, L., Peter Tisha's father, testified spoke investigator that he with a sexual abuse with the Department of Social Services and was told that the police needed to know where and when Tisha and gave Samuel had sex. Peter this information to Tisha. Finally, girlfriend, Steltzer, Catherine Peter's testified they giving baby that she was told would consider cooperated. impression if Tisha she It her was that the baby being pawn was used as a and that this was blackmail.
¶ 54. If in fact Tisha was threatened with the loss baby of her unless she confessed to an unlawful sexual relationship implicit with Samuel, such threats, or explicit, egregious police constitute This conduct. challenged, record contains much evidence, none of it that leads to that I conclusion. would send it back for court's circuit determination of the facts and con- clusions. respectfully I therefore dissent.