SUPREME COURT OF WISCONSIN
Complete Title of Case:
State of Wisconsin, Plaintiff-Respondent, v. Tonnie D. Armstrong, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS January 21, 1999 September 17, 1998
Opinion Filed: Submitted on Briefs: Oral Argument:
Source of APPEAL COURT: COUNTY: JUDGE:
Circuit Racine Emmanuel Vuvunas
JUSTICES: Concurred: Dissented: Not Participating:
For the defendant-appellant there were briefs by
Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch, Elkhorn, and oral argument by Steven A. Koch.
For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, assistant attorney general.
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
Nos. 97-0925-CR, 97-0926-CR STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin, Plaintiff-Respondent, v. Tonnie D. Armstrong, Defendant-Appellant.
JAN 21, 1999
Marilyn L. Graves Clerk of Supreme Court Madison, WI
APPEAL from a judgment of the Circuit Court of Racine County, Emmanuel J. Vuvunas, Circuit Court Judge. ¶1 N. PATRICK CROOKS, J. Affirmed.
These cases are before the court
on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) homicide 809.61 (1995-96).1 Tonnie D. Police officers investigating at a the
county jail, where Armstrong was serving time for an unrelated offense. the Armstrong made oral statements incriminating himself in At the end of the interview, the officers
administered the Miranda warnings2 to Armstrong for the first time. About two hours later, they presented Armstrong with a written statement memorializing the earlier unwarned statements. Armstrong
reviewed and altered the written statement, and after the officers
Unless otherwise noted, all Statutes are to the 1995-96 version.
See Miranda v. Arizona, 384 U.S. 436 (1966). 1
read the Miranda warnings a second time, Armstrong initialed and signed it. ¶2 State Based on Armstrong's oral and written statements, the Armstrong with first-degree intentional homicide,
theft from a person, and bail jumping.
Before trial, Armstrong
filed a motion challenging the admissibility of his statements. Following Circuit Court Judge Emmanuel J. Vuvunas' ruling that the oral and written statements were admissible, Armstrong entered into a plea agreement in which he pled guilty to second-degree reckless homicide, offender.3 theft from a person, and bail jumping as a habitual
Armstrong was convicted of all charges and was sentenced Armstrong appealed the
to a total of twenty-six years in prison.
portion of the final order which denied his motion challenging the admissibility of the statements, and the court of appeals certified the matter to this court. ¶3 appeal. This court is confronted with two primary issues on this First, we must determine the admissibility of the oral which Armstrong made before receiving his Miranda
statements warnings. statement
Second, we must decide the admissibility of the written which reiterated Armstrong's earlier unwarned oral
statements and which Armstrong signed after receiving his Miranda
Armstrong also agreed to probation revocation and resentencing for his conviction in case number 97-0925-CR of theft from a person. Case number 97-0925-CR is now the companion case to the main case before us, case number 97-0926-CR.
warnings and after signing a form stating that he understood and waived his rights.4 ¶4 were Upon review, we conclude that Armstrong's oral statements because Armstrong made the statements during
custodial interrogation and before the administration of Miranda warnings. However, the circuit court properly ruled that
Armstrong's written statement was admissible pursuant to Oregon v. Elstad, 470 U.S. 298 (1985). In light of our ruling that
The court of appeals set forth the following issues when it certified Armstrong's appeal to this court: 1. Who has the burden of proof on a Miranda custody question? 2. On the issue of custody, is the language of Mathis v. United States, 391 U.S. 1 (1968), to be read literally or limited as indicated by other federal and state cases? More specifically, is Schimmel v. State, 84 Wis. 2d 287, 294, 267 N.W.2d 271, 274 (1978), overruled on other grounds by Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980) (where it appears the court accepted the State's concession that a defendant was in custody for purposes of Miranda by being an inmate in the Wisconsin prison system) still the law in Wisconsin? 3. On the issue of interrogation, should the language of Rhode Island v. Innis, 446 U.S. 291 (1980), be read as broadly as it appears, or should Wisconsin follow the lead of some of the federal cases and other states which look to the totality of the circumstances to see if a Miranda-type interrogation occurred? 4. In light of the above, is the holding of State v. Ambrosia, 208 Wis. 2d 269, 560 N.W.2d 555 (Ct. App. 1997), a proper application of Oregon v. Elstad, 470 U.S. 298 (1985)? Certification by Court of Appeals at 1-2(footnote omitted). will answer these issues in the course of this opinion. We
Armstrong's written statement was admissible, we conclude that the circuit court's decision to admit the oral statements constituted harmless error. court. I. Accordingly, we affirm the judgment of the circuit
¶5 made by
admissibility two meetings
officers on July 31, 1995.
On that day, Armstrong was serving
time at the Racine County Jail as a result of his conviction in an earlier case, case number 97-0925-CR. The conviction arose
out of an incident on May 9, 1995, in which Armstrong snatched a woman's purse. Armstrong pled guilty to theft from a person and
was convicted on June 1, 1995.5 ¶6 From June 1, 1995, until his sentencing hearing on The circuit court, Armstrong's As a
July 13, 1995, Armstrong was free on bond. Judge Emmanuel J. Vuvunas presiding,
sentence and placed him on probation for three years.
condition of the probation, Armstrong was required to serve four months in the Racine County Jail. ¶7 On the morning of June 29, 1995, Detective Steve Mich
of the City of Racine Police Department discovered the body of Donald Thomas. Thomas’ body was lying on the floor of the An
bookstore he owned, and his wallet and keys were missing.
Armstrong was originally charged with strong armed robbery. The charge was later amended to theft from a person in violation of Wis. Stat. § 943.20(1)(a),(3)(d)2.
autopsy suggested that Thomas had died of asphyxiation and had probably been choked. ¶8 been in Police investigators soon learned that Armstrong had Thomas' bookstore the night before Thomas’ body was
Detective Mich and another officer went to the Racine
County Jail on July 31, 1995, to speak with Armstrong about the homicide. The officers met with Armstrong at about 2:15 p.m. in
an interview room in the jail’s main level intake area. ¶9 Detective Mich began by telling Armstrong that the
officers were there to talk to him about the death of Donald Thomas. the Neither officer read Armstrong his Miranda warnings at of the interview. received According from an to the of officers, Thomas'
bookstore had caused them to believe that Armstrong may have witnessed something which would assist them in their
Detective Mich later testified that the officers
did not suspect Armstrong of involvement in the crime when they went to talk with him. ¶10 Armstrong proceeded to tell the officers that he was
present when Thomas died and that he and Thomas had argued that
The bookstore employee told police that Armstrong was in Thomas' bookstore on June 29, 1995, the night before Thomas' body was found there. According to the employee, Armstrong left the store about a half hour before the employee left at 1:30 a.m., at which time Thomas was still alive.
Armstrong admitted that he had choked Thomas with both
hands for about ten seconds, stopped, and then grabbed him by the front of his shirt and shook him until Thomas went limp and fell to the floor. Armstrong also recounted his actions after
Thomas died, including his removal of Thomas' wallet and keys and exit from the bookstore. At some point, Armstrong drew the
officers a map showing where he disposed of the wallet and keys.8 ¶11 During the interview, Mich the officers asked that he Armstrong did not
questions. believe some
about which route he took home from the store and his version of the events which transpired inside the store. According to
Detective Mich, the first moment at which he began to suspect that Armstrong might have been involved in Thomas' death was when Armstrong told him that he and Thomas had argued and that he had placed his hands on Thomas.9
Detective Mich testified at the preliminary hearing that Armstrong told him that the argument ensued over a debt allegedly owed by Armstrong to Thomas. Detective Mich stated that he and Armstrong together estimated the amount of the debt to be around $100. See Prelim. Hearing Tr., Sept. 8, 1995 at 13-14 (No. 970926-CR). The motion hearing testimony is somewhat unclear as to precisely when the map was drawn. The circuit court concluded that the map was drawn partly before and partly after Armstrong was read the Miranda warnings at the first interview. See Motion Hearing Tr., Feb. 2, 1996 at 19 (No. 97-0926-CR).
See Motion Hearing Tr., Jan. 19, 1996 at 41-42 (No. 97-0926-
At about 3:00 p.m., the officers administered Miranda Detective Mich read
warnings to Armstrong for the first time.10
the warnings directly from a “Notification and Waiver of Rights” form. Armstrong signed the top portion of the form, which set However, he refused to sign
forth the text of the warnings.11
the waiver of rights printed on the bottom part of the form.12 ¶13 Nevertheless, Armstrong told the officers that he The
understood the Miranda warnings and would speak with them.
only conversation after the warnings, however, consisted of a brief discussion of whether Armstrong would accompany the It
officers on their attempt to locate Thomas' wallet and keys. was decided that Armstrong would remain at the jail.
finished constructing the map and the officers left, taking the map with them.
Detective Mich testified at the motion hearing that he read Armstrong his rights at this point in the interview "[b]ecause I believed him now." See Motion Hearing Tr., Jan. 19, 1996 at 24 (No. 97-0926-CR).
Armstrong does not challenge the substance of the warnings. The bottom portion of the form read,
I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made against me and no pressure or coercion of any kind has been used against me. According to Detective Mich, the officers did not press Armstrong to sign this bottom portion of the form, in part because they felt that they had finished the interview. See Motion Hearing Tr., Jan. 19, 1996 at 24-25 (No. 97-0926-CR).
In its entirety, the first interview lasted about an
Afterward, the officers left the jail and drove to the
place depicted on the map, where they located Thomas' wallet and keys. Detective Mich returned to the police department and
reduced Armstrong's oral statements to writing in a document he labeled, "Sworn Affidavit." statement was based It is undisputed that this written on Armstrong's previous oral
statements. ¶15 The officers returned to the jail at about 5:10 p.m.
the same day, July 31, 1995, with the written statement, which they presented to Armstrong. and made some changes in it.13 Mich administered the Miranda Armstrong reviewed the statement When he was finished, Detective warnings for the second time,
reading them from another copy of the “Notification and Waiver of Rights” form. and This time, Armstrong signed both of the top
Armstrong then returned to the written statement prepared by Detective Mich, initialed each change he had made, and signed
Armstrong made the following changes in the statement: (1) replaced “three or four” with “one” in the phrase, “I had watched three or four peep shows”; (2) replaced "and" in the phrase "and I told him that I would start paying" with an illegible word ("him" refers to Donald Thomas); (3) replaced “I knew he was dead” with “He was unconscious” (“he” refers to Thomas); and (4) crossed out the sentence, “I knew he had a bad heart” (again, “he” refers to Thomas). Armstrong later testified that the written statement was accurate and was the same as the statements he had made earlier. See Motion Hearing Tr., Jan. 19, 1996 at 70-72 (No. 97-0926-CR).
Nothing further occurred in this second meeting
between the officers and Armstrong.14 ¶16 In an information filed October 5, 1995, the State
charged Armstrong with first-degree intentional homicide, theft from a person, and bail jumping, all as a habitual offender.15 Armstrong filed a pre-trial motion on November 15, 1995,
challenging the admissibility of his oral statements and the written statement. ¶17 Hearings on the motion were held on January 19, 1996, The circuit court, Judge Emmanuel J.
and February 2, 1996.
Vuvunas presiding, ruled that the statements Armstrong made at the first and second interviews were admissible. began by stating that he found the police Judge Vuvunas to be
"credible" and that he believed them when they said that they did not think Armstrong was a suspect at the start of the first
Police officers met with Armstrong for a third time on August 2, 1995. At that meeting, Armstrong was asked whether he wanted a lawyer, and he gave a general reply along the lines of "maybe I should." The circuit court ruled that this statement was inadmissible because the officer had not either clarified it or attempted to obtain a waiver of Armstrong's right to an attorney. The State does not challenge that ruling, and the third meeting is not otherwise relevant to this appeal. More specifically, Armstrong was charged with homicide under Wis. Stat. § 940.01, theft from a person in violation of Wis. Stat. § 943.20(1)(a),(3)(d)2, and bail jumping under Wis. Stat. § 946.49(1)(b). Armstrong was charged with all three offenses as a habitual offender pursuant to Wis. Stat. § 939.62 because he committed the three offenses within five years of his conviction of theft from a person in case number 97-0925-CR. The habitual offender statute increases the maximum term of imprisonment for crimes committed by persons who have been convicted of certain other crimes within the previous five years. See Wis. Stat. § 939.62.
Motion Hearing Tr., Feb. 2, 1996 at 18 (No. 97-0926-
In regard to the oral statements, Judge Vuvunas ruled, I'm satisfied that when the officer realized that [Armstrong] was, in fact, making statements that might be incriminating, they gave him his rights. He did not – he did acknowledge . . . the fact that his rights were given. He did not sign the waiver. I don't find that to be telling here. I believe the officers that even though he said he didn't want to sign the waiver, but he did want to continue talking, and did it's clear that he was talking and drawing and doing things both before this, these rights were given[,] and after, . . . so I find that they did comply with Miranda . . . once they were appraised and knew that he, in fact, was a suspect in this matter, and that the statements made on that occasion were voluntary by Mr. Armstrong.
statements were admissible.
¶18 The court also ruled that Armstrong's written statement The court reasoned that Armstrong had made the
statement after receiving his Miranda warnings at the first meeting about two hours earlier. The court found that Armstrong
"understood what he was doing, that he understood the warnings of Miranda and was making a statement voluntarily." Tr., Feb. 2, 1996 at 19 (No. 97-0926-CR). Motion Hearing
Armstrong’s a plea
Pursuant to the agreement, Armstrong pled guilty to
second-degree reckless homicide, theft from a person, and bail jumping as a habitual offender.17 In addition, Armstrong agreed
to refuse the probation which was imposed upon him and to be resentenced for his conviction of theft from a person in case number 97-0925-CR. Armstrong was convicted of all three
charges, and on April 11, 1996, was sentenced to a total of twenty-six years in prison.18 the final order in which Armstrong appealed the portion of the court denied his motions
challenging the admissibility of the statements. appeals certified the matter to this court.
The court of
The parties entered the agreement during the hearing. Apparently, the parties had made alternative plea agreements and the choice of agreement was dependent on the circuit court's ruling on the motion. The record contains no amended information, but the State clearly amended the information orally at the motion hearing. See Motion Hearing Tr., Feb. 2, 1996 at 21 (No. 97-0926-CR). Essentially, the count of first-degree intentional homicide was amended to a count of second-degree reckless homicide, which is defined by Wis. Stat. § 940.06. Also, the increased penalty for habitual offenders was applied only to the bail jumping count. At the sentencing hearing, the court sentenced Armstrong for the three counts in case number 97-0926-CR and the one count in case number 97-0925-CR. The court imposed sentences of ten years on the homicide charge, five years on each theft charge, and eleven years as a habitual offender on the bail jumping charge. Except for one of the five-year theft sentences, the sentences are to be served consecutively.
As a threshold matter, we determine which party bears of proof19 on the issue of whether whether in an of a a "custodial custodial inquiry Miranda of v.
interrogation" interrogation whether
occurred. occurred were is
Determining the first in
Arizona, 384 U.S. 436 (1966), because Miranda warnings need only be administered to individuals who are subjected to a custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300
(1980); Oregon v. Mathiason, 429 U.S. 492, 495 (1977); Miranda, 384 U.S. at 444, 477; State v. Mitchell, 167 Wis. 2d 672, 686, 482 N.W.2d 364 (1992). The allocation of the burden of proof is
important in this case because the record provides only sketchy information about the circumstances of the interview between
Armstrong and the police. ¶21 We conclude that the State must establish by a
preponderance of the evidence whether a custodial interrogation took place. Although Wisconsin courts have not yet ruled
directly on the precise issue, our holding is consistent with Wisconsin precedent which places the burden of proving other aspects of Miranda with on the State. Moreover, the our holding is
In this opinion, the term "burden of proof" includes both the burden of production of evidence and the burden of persuasion. We used "burden of proof" in the same way in State v. Santiago, 206 Wis. 2d 3, 19, 556 N.W.2d 687 (1996).
Wisconsin courts have not directly decided which party the burden of establishing whether a custodial
interrogation occurred, although language in State v. Mitchell, 167 Wis. 2d 672, 696, 482 N.W.2d 364 (1992), suggests that the burden is on the State. In Mitchell, we stated, "Once the state has
established a prima facie case of waiver of Miranda rights and voluntariness of a statement of an in-custody police interrogation in the absence of countervailing evidence, the statement should be admitted into evidence." State v. Hernandez, 61 Mitchell, 167 Wis. 2d at 696 (citing Wis. 2d 253, 259, 212 N.W.2d 118
Wisconsin courts have placed the burden It is
of proving other aspects of Miranda squarely on the State. well established that the State must show that the
received and understood his or her Miranda warnings.
See Mitchell, The State
167 Wis. 2d at 696-97; Hernandez, 61 Wis. 2d at 258.
must show that the defendant knowingly and intelligently waived the constitutional rights protected by the Miranda warnings. See State
v. Santiago, 206 Wis. 2d 3, 12, 556 N.W.2d 687 (1996); Mitchell, 167 Wis. 2d at 696-97; Hernandez, 61 Wis. 2d at 258. The State
also bears the burden on the issue of whether the warnings were sufficient in substance. ¶23 Santiago, 206 Wis. 2d at 12.
Further, in State ex rel. Goodchild v. Burke, 27 Wis. 2d
244, 262, 133 N.W.2d 753 (1965), this court held that a separate hearing before the trial judge is required in order to determine whether a defendant's admission bears was the voluntary. burden on Goodchild, the issue 27 of
Wis. 2d at 262. The
voluntariness in Goodchild hearings. 13
See Goodchild, 27 Wis. 2d at
In Roney v. State, 44 Wis. 2d 522, 534, 171 N.W.2d 400
(1969), we ruled that Miranda objections also require a hearing. We went on to "adopt the procedure of the Goodchild hearing in determining Miranda questions," and to hold that the Miranda and Goodchild hearings may be held together. We stated: [I]n each case, whether the challenge is under Goodchild or under Miranda, substantially the same type of inquiry must be made by the court. In Miranda the question is, was the confession or other statement obtained under such circumstances of custodial interrogation as to require the exclusion of the statement from evidence. In Goodchild the question is, was the statement involuntary and therefore should be excluded from evidence. . . . We therefore conclude that Miranda, like Goodchild, should require a hearing by the trial judge out of the presence of the jury. The Goodchild procedure has been outlined in the case bearing that same name. A similar procedure should be followed in the event of a Miranda objection. The court should determine the merits of that objection sitting alone, out of the presence of the jury and preferably, as in Goodchild, in a pretrial proceeding. Following such a hearing in which the facts are heard, the court's finding would have to be made beyond a reasonable doubt and the [S]tate would have the burden of proving compliance with Miranda or a waiver of those requirements. . . . Id. at 533-34 (Emphasis added). of proof in Goodchild Because the State bears the burden as to whether a defendant's Roney, 44 Wis. 2d at 534.
admission or confession was voluntary, it follows that the State should bear the burden of proof in Miranda hearings on the issue of whether a custodial interrogation occurred. See Goodchild, 27
Wis. 2d at 264-65.
A holding to the contrary would seem to be
inconsistent with this court's holding in Roney.
interrogation took place also comports with the reasoning of the United States Supreme Court in Miranda. placed the burden of showing that the In Miranda, the Court defendant waived the
constitutional privilege protected by the Miranda warnings on the government. See Miranda, 384 U.S. at 475. Although the burden on
the issue of waiver is distinct from the burden of establishing that a custodial interrogation took place, the Court's reasoning applies with equal force to the question we face in this case. Court stated: This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders. The
(1980)(citing this language from Miranda with approval).20
The State relies on Berkemer v. McCarty, 468 U.S. 420 (1984) as support for the proposition that the United States Supreme Court has placed the burden of establishing custodial interrogation on the defendant. In particular, the State points to the following language from Berkemer: "[R]espondent has failed to demonstrate that, at any time between the stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest." Berkemer, 468 U.S. at 441. When coupled with the Court's holding that the Berkemer respondent was not in custody, the State argues, the quoted language shows that the Supreme Court placed the burden of establishing a custodial interrogation on the defendant. See id.
Applying this reasoning to the current situation, we
conclude that the State should be required to establish whether a custodial interrogation took place. The State is responsible
for creating the custodial situation, and the State conducts and controls the interrogation. keeping practices, the Further, as a result of its recordis more likely to reduce an
interview to writing or have other "corroborated evidence" of the interrogation session. Indeed, the Court in Miranda noted
that the atmosphere of custodial interrogation was a "policedominated" one. Miranda, 384 U.S. at 445. A defendant in such
an environment is less likely to be familiar with his or her surroundings or to otherwise be able to provide evidence of the circumstances of the custody or interrogation. Therefore,
under the reasoning of Miranda, the State is the party better
We are not persuaded that the quoted language from Berkemer reflects a desire by the United States Supreme Court to place the burden on the issue of custodial interrogation upon the defendant rather than the State. The language cited by the State is the only reference made in the decision to the allocation of burdens of proof. Further, the language appears near the end of a discussion of "whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered 'custodial interrogation.'" Id. at 435. The issue of which party bore the burden of proving that a custodial interrogation took place was not squarely before the Court.
suited to bear the burden of establishing whether a custodial interrogation took place.21
¶26 Federal and Wisconsin law are clear that the standard of
proof which the State must meet in proving compliance with Miranda is preponderance of the evidence. See Colorado v. Connelly, 479
U.S. 157, 168 (1986)(stating that preponderance of the evidence is the appropriate standard of proof whenever the State bears the burden of proving waiver of the rights protected by Miranda);
Santiago, 206 Wis. 2d at 12 (holding that the State must prove the sufficiency of the Miranda warnings and waiver of Miranda rights by a preponderance of the evidence); State v. Jones, 192 Wis. 2d 78, 114a, 532 N.W.2d 79 (1995)(per from the curiam on motion opinion for the
statement that the State must prove waiver of Miranda rights beyond a reasonable doubt and instead imposing the preponderance of the evidence standard). As the United States Supreme Court stated in
United States v. Matlock, 415 U.S. 164, 178, n.14 (1974), "the
Both sides refer to the analysis for allocating burdens of proof which this court employed in State v. McFarren, 62 Wis. 2d 492, 215 N.W.2d 459 (1974). In McFarren, we stated that a court should take five factors from McCormick, Handbook of the Law of Evidence, § 337 at 787-89 (2d ed. 1972), into account when determining which party bears the burden of proof. See McFarren, 62 Wis. 2d at 499-503. Stated concisely, the factors are: "(1) the natural tendency to place the burden on the party desiring change; (2) special policy considerations such as those disfavoring certain defenses; (3) convenience; (4) fairness; and (5) the judicial estimate of probabilities." State v. Big John, 146 Wis. 2d 741, 755, 432 N.W.2d 576 (1988). In this case, an analysis based on the McFarren factors appears unnecessary given the Wisconsin and federal precedent supporting our decision to place the burden on the State.
controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence . . . ." See also Connelly, 479 U.S. at 168 (citing this language from
Matlock with approval); State v. Rewolinski, 159 Wis. 2d 1, 16 n.7, 464 N.W.2d 401 (1990)(quoting this language from Matlock); State v. Lee, 175 Wis. 2d 348, 364, 499 N.W.2d 250 (Ct. App. 1993)(holding, based on Connelly and Rewolinski, that the State must prove waiver of Miranda rights we hold by that a a preponderance the State must of meet the its evidence). burden by of a
preponderance of the evidence.22
interrogation occurred such that Miranda warnings were required. The State must meet this burden by a preponderance of the
In Wisconsin, "preponderance of the evidence" is equivalent to the civil "greater weight of the credible evidence" standard of proof. Wis. JICivil 200 and Comment; Santiago, 206 Wis. 2d at 12, n.5.
incriminating oral statements Armstrong made before he received his Miranda warnings. statements are In short, we hold that Armstrong's oral because they were obtained in
violation of Miranda.
¶29 In Miranda, the United States Supreme Court held that law
enforcement officers conducting a “custodial interrogation” must employ “procedural safeguards” sufficient to protect a defendant’s Fifth Amendment and Fourteenth Amendment privilege against
compelled self-incrimination.23 Innis, 446 U.S. at 297.
Miranda, 384 U.S. at 444; see also The it Court spelled out a list of
safeguards are commonly called “Miranda warnings.”24 Law enforcement officers must administer Miranda warnings at the first moment an individual is subjected to "custodial interrogation." Miranda, 384
U.S. at 444, 477; see also Innis, 446 U.S. at 300; Mathiason, 429 U.S. at 495; Mitchell, 167 Wis. 2d at 686.
In other words, police
The Fifth Amendment to the United States Constitution provides that no "person . . . shall be compelled in any criminal case to be a witness against himself." The Fourteenth Amendment of the federal constitution requires state courts to observe this privilege against compelled self-incrimination. Malloy v. Hogan, 378 U.S. 1, 3 (1978). The administration of Miranda warnings involves informing a person that he or she has the right to remain silent, that any statement he or she makes can be used as evidence against the person, that he or she has the right to have an attorney present during the interrogation, and that if the person wants an attorney but cannot afford one, an attorney will be appointed for the person. See Miranda, 384 U.S. at 445, 467-73.
custody” and under “interrogation.” ¶30 showing
Mitchell, 167 Wis. 2d at 686.
As we have already decided, the State had the burden of whether Armstrong was the subject of a custodial
During oral argument, the State admitted that if it
bore the burden on the issue of custodial interrogation, then the State had failed to meet it.25 We consider those issues in the
interest of judicial economy where, as here, the issues were fully briefed and are likely to recur. Coffey, 18 Wis. 2d 529, 532, 118 See State ex rel. Jackson v. N.W.2d 939 (1963); Gross v.
Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938).26 ¶31 We note at the outset of our discussion that this court
will not set aside the circuit court's findings of fact unless they are "clearly erroneous." State v. Cunningham, 144 Wis. 2d 272, 282 We must give "due regard" to the
(1988); Wis. Stat. § 805.17(2).
circuit court's opportunity to observe the witnesses and determine their credibility. Wis. Stat. § 807.15(2). The determination of
whether the facts in this case meet the appropriate legal standards presents a question of law which we may decide independently of the circuit court. Cunningham, 144 Wis. 2d at 282.
Counsel's exact statement was, "If the burden of proof is on the State, then I don't think we have established . . . affirmatively that there wasn't custody, and . . . I think that we probably have not affirmatively established that there wasn't interrogation." The parties in this case briefed and argued the issues of custody and interrogation and that the court of appeals raised both issues when it certified Armstrong's appeal to this court.
In general, a person is "in custody" for purposes of
Miranda when he or she is "deprived of his [or her] freedom of action in any significant way." Miranda, 384 U.S. at 444, 477. A
person may be deemed to be “in custody” in a broad variety of settings. For example, a person in his or her own bedroom is "in
custody" if the person has been placed under arrest and is not free to go wherever he or she wants. 327 (1969). See Orozco v. Texas, 394 U.S. 324,
Of relevance to this case, the United States Supreme
Court has ruled that a prison inmate was "in custody" for purposes of Miranda even though he was questioned about a situation distinct from the one for which he was incarcerated. States, 391 U.S. 1, 4-5 (1968). See Mathis v. United
The State argues that Armstrong was not "in custody"
when he made his oral statements, and therefore, his statements are admissible even in the absence of Miranda warnings. Since
there was no change in Armstrong's custodial status concurrent with the time at which officers arguably began interrogating Armstrong, the State reasons, Armstrong was not "in custody" because he was free to get up out of the jailhouse interview room and walk back to his cell. ¶34 We reject this argument as directly contrary to Mathis
and its Wisconsin counterpart, Schimmel v. State, 84 Wis. 2d 287, 267 N.W.2d 271 (1978).27 The defendant in Schimmel was an
inmate at the Wisconsin State Reformatory at Green Bay (now the
Schimmel v. State, 84 Wis. 2d 287, 267 N.W.2d 271 (1978), was overruled on other grounds by Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980).
Green Bay Correctional Institution). at 288. While attending a Division
See Schimmel, 84 Wis. 2d of Corrections alcohol
treatment program at the Winnebago Mental Health Institute, the defendant went to the office of the Division of Corrections
employee who was in charge of the program and told him that he had killed a waitress and had tried to rape her. The employee called the police. Id. at Id. at 288-89. After the
officers arrived and read the defendant his Miranda warnings, the defendant told them the same story. ¶35 This court upheld the Id. at 289-90. court’s ruling in
Schimmel that the defendant’s statements to the employee were admissible statements voluntarily. in did the not absence stem of from Miranda warnings and because were the made
See id. at 297-98.
This court stated, “There can
be no question that the defendant was in custody at the time he made the statement to [the employee].” Id. at 294. As support
for our holding, we quoted directly from Mathis: “The Government also seeks to narrow the scope of the Miranda holding by making it applicable only to questioning one who is ‘in custody’ in connection with the very case under investigation. There is no substance to such a distinction, and in effect it goes against the whole purpose of the Miranda decision which was designed to give meaningful protection to Fifth Amendment rights. We find nothing in the Miranda opinion which calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody.” Id. at 294-95 (quoting Mathis, 391 U.S. at 4-5).
Today, we reaffirm our decision in Schimmel and hold that
a person who is incarcerated is per se in custody for purposes of Miranda.28 See also State v. Hockings, 86 Wis. 2d 709, 720 & n.5, Under Mathis and Schimmel, the reason that
273 N.W.2d 339 (1979).
The State argues that this court’s holding in Schimmel that the defendant was in custody is of no precedential value because the Schimmel court noted that the State “apparently concede[d] that the defendant was in custody.” Schimmel, 84 Wis. 2d at 295. As support for this argument, the State relies primarily upon Wilson v. State, 82 Wis. 2d 657, 264 N.W.2d 234 (1978). Quoting from Wilson, the State contends, “A holding that is based on a concession by the [S]tate ‘has no precedential value’ in this state.” State’s Br. at 24 (quoting Wilson, 82 Wis. 2d at 663). This court does not read Wilson as establishing such a broad rule. An examination of the pertinent discussion in Wilson is illuminating. The discussion concerned Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1971), which the defendant cited in support of the argument that he should be given credit for time served against all of his sentences. Wilson, 82 Wis. 2d at 663. In Harris, the State conceded that the defendant was entitled to a credit against all sentences. Id. This court stated, We are satisfied that the [S]tate’s concession in Harris was inappropriate, and that the mandate of the court in respect to the consecutive sentence has no precedential value, because the issue was not before it and because the court stated no rationale which would justify a credit against the consecutive sentence . . . .” Id. at 663-64 (emphasis added). Under our reading of Wilson, the only situation in which a holding based on a concession by the State may not have precedential value arises when the court provides no rationale or analysis of the subject of the concession and the subject of the concession is not disputed by the parties and is therefore not an issue before the court. In Schimmel, custody was an issue which was directly presented to the court and the court provided over a half-page of rationale for its decision that custody existed. See Schimmel, 84 Wis. 2d at 294-95. Therefore, this court does not believe that Schimmel’s precedential value is impaired in any way by virtue of the State’s concession that custody existed.
whether he or she was in custody.
The State’s assertion that
custody only occurs if there is an increase in custodial status commensurate with the interrogation simply misses the point.
Indeed, we can think of no situation in which a defendant is more clearly in custody, as envisioned by the Miranda Court, than when the defendant is confined in a prison or jail. hold that Armstrong was in custody when he Accordingly, we made all of the
statements at issue in this case, because he was an inmate of the Racine County Jail at the time. ¶37 Next, we consider whether, at the time he made his
statements, Armstrong was subjected to interrogation by the police officers.29 Both parties agree that the seminal case on
interrogation is Rhode Island v. Innis, 446 U.S. 291 (1980).
Innis, an “interrogation” occurs when a person is “subjected to either express questioning or its functional equivalent.” 446 U.S. at 300-301. More specifically, the Court stated: Innis,
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Id. (footnotes omitted).
In the discussion which follows, we address the third issue raised by the court of appeals in its certification of this case.
This court adopted the Innis test in State v. Cunningham, We pointed out in
144 Wis. 2d 272, 276-82, 423 N.W.2d 862 (1988).
Cunningham that the Innis test focuses on the perspective of the suspect, not the subjective intent of the police officers. Cunningham, 144 Wis. 2d at 279-80. This court stated: See
Even where the officer testifies that his or her actions had some purpose other than interrogation, the action must be viewed from the suspect’s perspective to determine whether such conduct was reasonably likely to elicit an incriminating response. If an impartial observer perceives the officer’s purpose to be something other than eliciting a response, the suspect is also likely to view the officer’s purpose that way. Id. at 280. ¶39 Applying the Innis test to the facts of this case, we
conclude that at the beginning of the interview, the officers had no reason to know that their questions would likely elicit an
incriminating response from Armstrong.
The information provided to
them by the bookstore employee gave them cause to believe that Armstrong was not even present at the time of the crime under investigation. However, the situation changed the moment Armstrong
contradicted the statement of the bookstore employee and said he was in the bookstore when Thomas died.30 At that point, the
officers should have known that their questioning was reasonably likely to result in an incriminating response. When Armstrong said
Although the focus of our analysis is not perspective of the officers, we point out that agreed that Armstrong became a suspect only when he he had been in the bookstore when Thomas died. See Tr., Jan. 19, 1996 at 41-42 (No. 97-0926-CR).
the subjective Detective Mich indicated that Motion Hearing
he was there at the time of the crime, a reasonable person would have realized that Armstrong was a potential suspect and that
questioning could therefore result in a confession. ¶40 in the Nevertheless, even after Armstrong admitted that he was bookstore when Thomas died, the officers continued to
question him about the events of that night.
They indicated that
they did not believe Armstrong's story about the route he took home and they challenged his version of the events which transpired inside the bookstore. Although Detective Mich testified that the
officers in fact did not believe that Armstrong was a suspect and that they thought Armstrong was lying in order to cover for someone else, an objective observer could certainly have concluded from the officers’ questions and confrontational conversation that their
purpose was to elicit an incriminating response from Armstrong. From Armstrong’s perspective, the officers' conduct placed him in the position of having to elaborate upon his story in order to defend himself and preserve his credibility. Id. Therefore, under
Innis and Cunningham, the officers' words and conduct following Armstrong’s statement that he was present at the bookstore when Thomas died constituted interrogation. ¶41 We have concluded so far that Armstrong was in custody
for the entire duration of the interview and that Armstrong was interrogated from the moment he became a potential suspect until the end of the interview. Consequently, Armstrong was first
subjected to custodial interrogation when he told the police he was at the crime scene when the crime occurred, because that is when interrogation first existed. At that point, the police officers 26
should have administered Miranda warnings to Armstrong to ensure that his constitutional privilege to be free from compelled selfincrimination was protected. ¶42 It is undisputed, however, that Armstrong was not given
his Miranda warnings until the end of the first interview, after he had made all of his incriminating oral statements. Because the
police officers did not read Armstrong his Miranda warnings when the custodial interrogation began, Armstrong’s oral statements are inadmissible and should have been suppressed by the circuit court. See Miranda, 384 U.S. at 478; Mitchell, 167 Wis. 2d at 686. IV.
failure renders on to
to oral the
administer required Miranda statements admissibility inadmissible, of
warnings we move written
argues that his written statement is inadmissible because it was tainted by his earlier, unwarned oral statements. In support of
his position, Armstrong cites State v. Ambrosia, 208 Wis. 2d 269, 560 N.W.2d 555 (Ct. App. 1997), in which the court applied the “fruit of the poisonous tree” doctrine of Wong Sun v. United States, 371 U.S. 471 (1963), in holding that portions of the defendant’s post-Miranda statement were inadmissible because Ambrosia, and
they were tainted by his earlier, unwarned statement. 208 Wis. 2d at 276-78. We reject Armstrong’s
overrule the part of Ambrosia upon which Armstrong relies.31
hold instead that Armstrong’s written statement is admissible pursuant to Oregon v. Elstad, 470 U.S. 298 (1985). ¶44 In Elstad, police officers obtained a warrant to
arrest the defendant, Elstad, for the burglary of a neighbor’s home. See Elstad, 470 U.S. 300-301. The officers spoke with Id. at 301. After
Elstad in the living room of his home.
asking Elstad a few questions, one of the officers told Elstad that he suspected Elstad of involvement in the burglary. Elstad responded, “Yes, I was there.” drove Elstad to the police station, Id. where Id.
The officers then they administered
Miranda warnings for the first time.
Elstad indicated that
he understood his rights and wanted to talk to the officers. Id. He proceeded to give a complete oral account of his
involvement in the crime.
The statement was typed into a
written statement, which Elstad reviewed, initialed, and signed. Id. ¶45 At trial, the court admitted Elstad’s written
statement into evidence, finding that it was given knowingly and voluntarily after a waiver of the rights protected by Miranda.32 Id. at 302. Elstad was convicted of first-degree burglary.
This court may overrule, modify or withdraw language from published decisions of the court of appeals. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). The trial court suppressed Elstad’s initial statement, “Yes, I was there,” because of the officers’ failure to administer Miranda warnings. Oregon v. Elstad, 470 U.S. 298, 302 (1985). The State did not challenge the suppression of that statement. Id.
The Oregon Court of Appeals reversed, concluding that was not a sufficient and lapse his in time between Elstad's to went
inadmissible "insulate before." the
later from the
statement of what
Id. at 303 (quoting State v. Elstad, 658 P.2d 552, 554 The Oregon Supreme Court denied review.
States Elstad Supreme as Court granted certiorari,
(Or. Ct. App. 1983)).
¶46 framing Clause The the of United issue the in
Self-Incrimination suppression of a
confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier
voluntary but unwarned admission from the defendant.” U.S. at 303.
In a 6-3 decision, the Court answered this question
in the negative and reversed the decision of the Oregon Court of Appeals. Id. at 300. The Court held that Elstad's written
statement was not tainted by his earlier statement, and therefore, need not be suppressed. ¶47 The Court in Id. at 318. Elstad started by rejecting Elstad's
argument that a statement occurring after an unwarned statement must be suppressed under the "fruit of the poisonous tree" doctrine of Wong Sun. See id. at 304-05. In Wong Sun, the Court held that
witnesses and evidence must be excluded if they are "fruits" of a search which violated the Fourth Amendment of the federal
See Wong Sun, 471 U.S. at 485, 488; id. at 305-06.
As the Court in Elstad noted, the Wong Sun rule applies equally to require the suppression of a confession obtained as a consequence of a Fourth Amendment violation such as an illegal arrest. See 29
Elstad, 470 U.S. at 306; Taylor v. Alabama, 457 U.S. 687, 690 (1982). ¶48 between In Elstad, however, the Court made a clear distinction violations of the procedures set forth in Miranda and
violations of the United States Constitution. at 306.
See Elstad, 470 U.S.
The key difference between violations of Miranda and the
Fourth Amendment violations involved in Wong Sun, according to the Elstad Court, is that "a simple failure to administer Miranda Id.
warnings is not in itself a violation of the Fifth Amendment." at 307 n.1. The Court explained:
The Miranda exclusionary rule . . . serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm. Id. at 306-07. (citing New York v. Quarles, 467 U.S. 649, 654 (1983) and Michigan v. Tucker, 417 U.S. 433, 444 (1974))(footnote omitted). Therefore, the Elstad Court continued:
If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a
subsequent voluntary and informed waiver is ineffective for some indeterminate period. Elstad, 470 U.S. at 309. ¶49 Having concluded that the Wong Sun "fruit of the
poisonous tree" doctrine did not apply, the Elstad Court set forth the following rule: [A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the condition that precluded admission of the earlier statement. Id. at 314.33 The Court reiterated this rule later in the opinion:
[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. Elstad, 470 U.S. at 318. When determining whether the second
statement was made voluntarily, a finder of fact must look at the totality of the circumstances. Id. The Elstad Court noted that
In Elstad, the Court was careful to mention decision did not alter the rule of Miranda, stating,
When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief. . . . The Court today in no way retreats from the bright-line rule of Miranda. . . . Elstad, 470 U.S. at 317-18.
"[t]he fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative" in determining the voluntariness of the suspect's post-Miranda statements. ¶50 In this case, we are faced with a Id. nearly
identical to the one addressed by the Court in Elstad. the officers technically violated Miranda when they
Although failed to
administer Miranda warnings prior to Armstrong's oral confession, there is no claim that Armstrong made his oral or written
statements involuntarily.34 given after Armstrong
Since Armstrong's written statement was waived his Miranda rights, the
written statement is admissible under Elstad. ¶51 We hold first that the officers' failure to administer
the Miranda warnings prior to Armstrong's oral statements was in the nature of a technical violation as conceptualized by the Elstad Court. The Court in Elstad drew a distinction between violations According to
of Miranda and violations of constitutional rights.
the Court, a failure to administer the Miranda warnings which was "unaccompanied by any actual coercion or other circumstances
calculated to undermine the suspect's ability to exercise his free will" was insufficient to result in an imputation of taint to
subsequent statements. ¶52 As noted
Elstad, 470 U.S. at 309. the circuit court found that
Armstrong’s oral statements were voluntary. Tr., Feb. 2, 1996 at 19 (No. 97-0926-CR).
See Motion Hearing
There is no evidence of
As we have already indicated, the circuit court specifically found that Armstrong's oral and written statements were voluntarily made. See Motion Hearing Tr., Feb. 2, 1996 at 19 (No. 97-0926-CR).
ability to exercise his free will.
Detective Mich testified that
there was no initial intent to interrogate Armstrong and that until they administered the Miranda warnings, the officers thought
Armstrong was a mere witness to the events leading up to the crime. Moreover, less than forty-five minutes elapsed between the time at which the officers should have administered the Miranda warnings, when Armstrong told them that he was present when Thomas died, and the point at which they did read the Miranda warnings, at about 3:00 p.m. The officers did read the Miranda rights before the Since
interview ended and Armstrong cooperated fully thereafter.
under the totality of the circumstances, Armstrong gave his oral statements voluntarily, we uphold the circuit court’s finding that the oral statements were voluntary. We conclude that the officers'
violation of Miranda during the taking of the oral statements was merely a technical one that did not amount to a constitutional violation. ¶53 violated Given our conclusion that the officers only technically Miranda as to Armstrong's oral statements, Armstrong's
subsequent written statement is admissible pursuant to Elstad as long as it was a voluntary statement made after a valid
administration of the Miranda warnings as well as a knowing and voluntary protects. waiver of the constitutional privilege which Miranda
As we have already indicated, the circuit court found
that Armstrong provided the written statement voluntarily after he had been read the Miranda warnings and had knowingly waived his
See Motion Hearing Tr., Feb. 2, 1996 at 19 (No. 97-0926-
Looking at the totality of the circumstances, we agree. ¶54 After Armstrong received his Miranda rights the first
time, he signed the notification portion of the "Notification and Waiver Form." his rights He also indicated to the officers that he understood speak with them. Armstrong continued to
cooperate with the officers by finishing up the map he was drawing and reviewed and corrected the written statement the officers gave him about two hours later. When Armstrong was read his Miranda
warnings again after he edited the statement, he signed both parts of the "Notification and Waiver Form" and signed and initialed the statement. From this chain of events, we conclude that Armstrong Further, we
knew his rights when he signed the written statement.
agree with the Elstad Court that Armstrong's choice to continue cooperating and speaking after he received his Miranda rights each time is "highly probative" to our inquiry. Consequently, under the
totality of the circumstances, Armstrong voluntarily provided his written statement, and he did so after receiving his Miranda
warnings and knowingly and voluntarily waiving the constitutional rights safeguarded by Miranda. ¶55 Armstrong argues that the court of appeals' decision in
State v. Ambrosia, 208 Wis. 2d 269, 560 N.W.2d 555 (Ct. App. 1997), governs this case. We disagree. In Ambrosia, the court of appeals
concluded, based on Wong Sun, that "those portions of the postMiranda statement tainted by the earlier statement must be
Ambrosia, 208 Wis. 2d at 277.
As we have already
indicated, Elstad makes clear that the application of the "fruit of 34
the poisonous tree" doctrine to violations of Miranda which are not also violations of the Fifth and/or Fourteenth Amendment is
Accordingly, we overrule the parts of Ambrosia in which
the court of appeals made the above-quoted statements, relied upon Wong Sun, or applied the Wong Sun "fruit of the poisonous tree" rationale to a statement made after a Miranda violation.35 ¶56 In summary, we conclude that Armstrong's written
statement is admissible under Elstad.
Armstrong made the statement
voluntarily, after a knowing and voluntary waiver of his Miranda rights, and the officers' failure to administer Miranda warnings prior to Armstrong's first statement was only a technical violation of Miranda, not a violation of the Fifth Amendment to the federal constitution Amendment. refer to as applied to the states through the Fourteenth
In addition, we overrule the parts of Ambrosia which Wong Sun or apply the "fruit of the poisonous tree"
inadmissible admissible. on the
We have yet to determine the effect of our holdings of this case. Because we have held that
Armstrong's written statement is admissible, the circuit court committed harmless error when it failed to suppress Armstrong's
The language to which we refer occurs on pages 276 through 278 of the opinion. See State v. Ambrosia, 208 Wis. 2d 269, 560 N.W.2d 555 (Ct. App. 1997).
Therefore, we affirm Armstrong's convictions.
The harmless error test appears in Wis. Stat. § 805.18,36
which requires that this court "disregard any error or defect in the . . . proceedings which shall not affect the substantial rights of the adverse party." admitted evidence, § 805.18(1). prohibits When a court has improperly the court from reversing
unless an examination of the entire proceeding reveals that the admission of the evidence has "affected the substantial rights" of the party seeking the reversal. ¶59 § 805.18(2).37
The United States Supreme Court set forth the harmless In
error test in Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, the Court ruled that a conviction must be reversed if:
Although § 805.18 is part of the Wisconsin Rules of Civil Procedure, this court has ruled that Wis. Stat. § 972.11(1) renders § 805.18 applicable to criminal proceedings as well. See State v. Dyess, 124 Wis. 2d 525, 547, 370 N.W.2d 222 (1985); see also State v. Ramos, 211 Wis. 2d 12, 39 & n.6, 564 N.W.2d 328 (1997)(Crooks, J., dissenting). Section 972.11(1) provides, in pertinent part, that "the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction."
Wis. Stat. § 805.18(2) provides:
No judgment shall be reversed or set aside . . . in any action or proceeding on the ground of . . . improper admission of evidence . . . unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.
there is a reasonable probability that, but for . . . [the] errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . [T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 694-95. This court adopted Strickland's
harmless error test in State v. Dyess, 124 Wis. 2d 525, 544-45, 370 N.W.2d 222 (1985). In Dyess, the court held,
[I]n respect to harmless versus prejudicial error . . . the test should be whether there is a reasonable possibility that the error contributed to the conviction. If it did, reversal and a new trial must result. Dyess, 124 Wis. 2d at 543. Although, in Dyess, this court used the
phrase "reasonable possibility" in place of the Strickland Court's "reasonable probability" language, we explained that the phrases were "substantively the same." See id. at 544.38
We have already concluded that the failure to administer Miranda warnings did not amount to a constitutional violation in this case. Nevertheless, we note that in State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985), we held that the harmless error test we established in that case applies to "a wide range of trial errors," Dyess, 124 Wis. 2d at 545, "whether of constitutional proportions or not." Id. at 543. In footnote 10 of Dyess, we pointed out that an exception to the general rule occurs for violations of constitutional rights "so basic to a fair trial that their infraction can never be treated as harmless error." Id. at 543 n.10 (quoting Chapman v. California, 386 U.S. 18, 23 (1967)). This court then listed all of the case law examples which the Chapman Court provided to illustrate this exception. See id. (citing Payne v. Arkansas, 356 U.S. 560 (1958)(right to remain free from coerced confessions); Gideon v. Wainwright, 372 U.S. 335 (1963)(right to counsel); Tumey v. Ohio, 273 U.S. 510 (1927)(right to impartial judge)); see also Chapman, 386 U.S. at 23 n.8. We note that the instant case does not involve circumstances similar to any of the listed cases.
committed harmless error when it ruled that Armstrong's oral statements were admissible. ruling admitting the As a result of the circuit court's Armstrong entered a plea
agreement and was convicted on all counts.
An examination of
the entire proceeding leads us to conclude that there is no reasonable possibility that a different result would have been reached had the circuit court suppressed the oral statements. ¶61 the oral At the same time the circuit court erroneously allowed statements, statement. that the the It court properly admitted Armstrong's himself the were
undisputed, statement Since the
testified, earlier identical failure
simply oral the
reiterated statements circuit
oral to to
cumulative evidence of guilt. would have come in to the
In other words, the same evidence proceeding through the written
statement had the circuit court properly suppressed the oral statements. We can discern no basis for believing that
Armstrong would not have entered his plea agreement or would not have been convicted had only the written statement been admitted
We recognize that this area of law has been a source of some confusion in the past. See Comment, Confusion in the Court Wisconsin's Harmless Error Rule in Criminal Appeals, 63 Marq. L. Rev. 643 (1980). This court has continued to apply the Dyess harmless error test, although it has been the subject of some debate. See State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987)(applying the Dyess test and containing concurring opinions which question the aptness of the Dyess test).
by the circuit court.
Therefore, we conclude that the admission Accordingly,
of the oral statements constituted harmless error. we affirm Armstrong's convictions.
Finally, we summarize the conclusions we reach today.39 we hold that Armstrong's oral statements are
inadmissible under Miranda. on the issue of custodial
The State bore the burden of proof interrogation and it failed to
establish that the interview in which Armstrong made his oral statements did not constitute a custodial interrogation. Under
Mathis and Schimmel, Armstrong was in custody because he was incarcerated when the officers conducted their first interview with him. Also, from under the Innis a and Cunningham, Armstrong would was have
realized that he was a potential suspect through the end of the interview. warnings at Because the the start officers of the did not read the Miranda
Armstrong's oral statements are inadmissible. ¶63 Further, we hold that Armstrong's written statement is We reject Armstrong's contention
admissible pursuant to Elstad.
that the Wong Sun "fruit of the poisonous tree" doctrine applies to preclude the admission of the written statement on the basis of taint from the earlier, inadmissible oral statements, and we overrule the part of Ambrosia which applies the Wong Sun "fruit
In summarizing our conclusions, we will answer the questions certified by the court of appeals in the order in which they were presented.
of the poisonous tree" rationale.
Since the officers' violation
of Miranda was of a technical nature and Armstrong made the written statement after a knowing and voluntary waiver of the rights protected by Miranda, Armstrong's written statement is admissible under Elstad. ¶64 we Because Armstrong's written statement is admissible, that the circuit court's ruling admitting There
Armstrong's oral statements constituted harmless error.
is no reasonable possibility40 that the admission of the oral statements contributed to Armstrong's conviction because the
written statement in which the oral statements were duplicated was admitted by the circuit court as well. Armstrong's conviction.
By the Court.— The judgments of the circuit court in 97-0925CR and 97-0926-CR are affirmed.
Therefore, we affirm
As we have explained, the phrase, "reasonable possibility" in Wisconsin's harmless error test, Dyess, 124 Wis. 2d at 543, is identical in substance to the phrase, "reasonable probability" in the harmless error test used by the United States Supreme Court, Strickland, 466 U.S. 694-95. Dyess, 124 Wis. 2d at 544.