State v. Dobbs
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The Supreme Court affirmed the decision of the court of appeals affirming Defendant's conviction of homicide by intoxicated use of a vehicle, holding that the circuit court did not err in its evidentiary rulings.
On appeal, Defendant argued that the circuit court (1) improperly excluded the expert testimony of Dr. Lawrence White, and (2) erred in denying his motion to suppress statements that he made to law enforcement because he was not read the Miranda warnings or, in the alternative, because his statements were not voluntarily made. The Supreme Court affirmed, holding (1) the circuit court properly excluded Dr. White's exposition testimony on the grounds that it did not fit with the facts of Defendant's case; (2) Defendant was subject to custodial interrogation and was not read the Miranda warnings, but the admission of those statements was harmless error; and (3) all of Defendant's statements were voluntary.
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2020 WI 64 SUPREME COURT OF WISCONSIN CASE NO.: 2018AP319-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Timothy E. Dobbs, Defendant-Appellant-Petitioner. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 388 Wis. 2d 144,930 N.W.2d 280 (2019 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: July 3, 2020 April 1, 2020 Circuit Dane Clayton Patrick Kawski & Jill Karofsky JUSTICES: DALLET, J., delivered the majority opinion of the Court with respect to Parts I, II, and III.C., in which all Justices joined; the majority opinion of the Court with respect to Part III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and HAGEDORN, JJ., joined; and the majority opinion of the Court with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by Michael D. Rosenberg and Community Justice, Inc., Madison. There was an oral argument by Michael D. Rosenberg. For the plaintiff-respondent, there was a brief filed by Michael C. Sanders, assistant attorney general; with whom on the brief is Joshua L. Kaul, attorney general. There was an oral argument by Michael C. Sanders. An amicus curiae brief was filed on behalf of The Innocence Projects, In., and the Wisconsin Innocence Project by Andrew T. Dufresne, Sopen B. Shah, and Perkins Coie LLP, Madison; with whom on the brief was Keith A. Innocence Project, Madison. 2 Findley and the Wisconsin 2020 WI 64 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP319-CR (L.C. No. 2015CF1938) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUL 3, 2020 v. Sheila T. Reiff Clerk of Supreme Court Timothy E. Dobbs, Defendant-Appellant-Petitioner. DALLET, J., delivered the majority opinion of the Court with respect to Parts I, II, and III.C., in which all Justices joined; the majority opinion of the Court with respect to Part III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and HAGEDORN, JJ., joined; and the majority opinion of the Court with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J., joined. KELLY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. REVIEW of a decision of the Court of Appeals. ¶1 REBECCA FRANK DALLET, J. Affirmed. The petitioner, Timothy E. Dobbs, seeks review of the court of appeals' decision1 affirming his judgment of conviction for homicide by intoxicated use of a vehicle. State v. Dobbs, No. 2018AP319–CR, unpublished slip op. (Wis. Ct. App. May 2, 2019). 1 No. ¶2 Dobbs raises two issues on appeal. 2018AP319-CR First, Dobbs asserts that the circuit court improperly excluded the expert testimony of Dr. Lawrence White.2 Second, Dobbs claims that the circuit court erred in denying his motion to suppress statements that he made to law enforcement because he was subject to custodial interrogation and not read the Miranda warnings,3 or, in the alternative, because his statements were not voluntarily made.4 ¶3 We conclude that the circuit court properly exercised its discretion when it excluded Dr. White's exposition testimony for a lack of fit with the facts of Dobbs's case. Additionally, although we determine that several of Dobbs's statements should have been suppressed because he was subject to custodial interrogation and was not read the Miranda warnings, we conclude that the error was harmless. We further conclude that all of Dobbs's statements were voluntary. ¶4 We therefore affirm the decision of the I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE court of appeals. ¶5 On the morning of September 5, 2015, a vehicle crossed several lanes of traffic and a median area, drove over a curb, The Honorable Clayton P. Kawski of the Dane County Circuit Court presided over the State's motion to exclude the testimony of Dr. Lawrence White. 2 3 Miranda v. Arizona, 384 U.S. 436 (1966). The Honorable David T. Flanagan of the Dane County Circuit Court presided over Dobbs's motion to suppress. 4 2 No. and struck a pedestrian. blocks from the scene, 2018AP319-CR The vehicle left the scene. Madison Police Officer Several Jimmy Milton noticed a vehicle with a completely deflated tire and exposed wheel rim on the front driver's side that matched the witnesses' description of the vehicle involved in the hit and run. Officer Milton positioned his squad car to prevent the driver, later identified as Dobbs, from leaving. ¶6 With his hand on his service weapon, Officer Milton instructed Dobbs to show his hands and exit the vehicle. Dobbs was immediately handcuffed and placed in the squad car. Officer Milton ongoing told Dobbs he was "being detained" for an "accident investigation" and that he was suspected of striking a pedestrian. Shortly after placing Dobbs in the squad car, Officer Milton learned that the pedestrian had died. ¶7 At 7:30 a.m., Officer Milton started questioning Dobbs while he remained handcuffed in the backseat of the locked squad car. The audio from Officer Milton's microphone did not start recording until 7:34 a.m.5 Dobbs his date registration. smell alcohol." of birth At 7:34 a.m., Officer Milton asked and questions about his vehicle's At 7:36 a.m., Officer Milton said to Dobbs "I Over the course of the next hour, Officer Milton talked to Dobbs about a variety of topics and asked him numerous questions, including: Officer Milton testified that he asked Dobbs his name, address, where he had been coming from, where he was headed, and other "identifying" information during this time. 5 3 No. 2018AP319-CR "Do you have any medical issues other than that splint that you were wearing?" "Do you take medications for depression and anxiety?" "Do you have any injuries from the collision with the curb?" "So [those bruises and scratches on your face] are all old?" In response to Officer Milton's comments, Dobbs stated that he had not slept in 40 hours and had not taken his medication that morning. Dobbs told Officer Milton that "he was adjusting his arm in the sling, and he lost control of the vehicle and he hit the curb, and that's what caused the damage to his front driver's side tire." ¶8 About 30 minutes into the questioning, Dobbs said "I take it I'm going to jail." Officer Milton never responded to Dobbs's statement, but he made several subsequent comments that there was an ongoing investigation and that was why there were up to three other officers on the scene at a time, including a K-9 unit. ¶9 During the questioning, Officer Milton exited the squad car several times to observe the exterior and interior of Dobbs's vehicle, alongside two other officers. saw "impact damage" to the front end and Officer Milton hood of Dobbs's vehicle, including two dents and a tree branch that was lodged in the vehicle's hood. Officer Milton also observed a can of 4 No. 2018AP319-CR air duster6 in plain view in the front center console, which was within reach of the driver's seat.7 Officer Milton described the vehicle's damage in detail to Dobbs and made comments like "it's obvious you hit something because your wheel is damaged." ¶10 After about an hour, Officer Milton removed Dobbs's handcuffs and he was escorted out of the locked squad car to perform field sobriety tests. Dobbs displayed no signs of intoxication during the tests, but Officer Milton asked him to submit to a blood test. Dobbs agreed and was subsequently transported to a nearby hospital. ¶11 a.m. Dobbs arrived at the hospital at approximately 9:08 Additional officers arrived at the hospital, including Officer Nicholas Pine, who began a drug recognition evaluation at approximately 9:45 a.m.8 As part of that evaluation, Dobbs was given a preliminary breath test, which revealed that Dobbs did not have any alcohol in his system. Nearly three hours after Dobbs was first handcuffed and placed in the locked squad car, at 10:19 a.m., Officer Pine first read Dobbs the Miranda warnings. Dobbs waived his Miranda rights and was questioned by Officer Pine. The can of air duster was referred to by a variety of names during the suppression hearing and the jury trial, including DustOff, Ultra Duster, air duster, duster, and compressed air. For ease of reference, we will refer to it as "air duster" throughout this opinion. 6 During a search of Dobbs's vehicle, Officer Timothy Frey found a Menards receipt for air duster dated the morning of the accident. 7 8 There is no audio or visual recording of this evaluation. 5 No. ¶12 2018AP319-CR Dobbs was then formally placed under arrest, informed that the pedestrian had died, and read the Miranda warnings for a second time by Officer Milton. rights and agreed to answer Dobbs again waived his Miranda questions. Dobbs eventually confessed that he had taken a puff of the air duster while he was driving, passed out, swerved, and then drove away from the scene. ¶13 Dobbs was transported to the City County Building garage where Officer Paul Fleischauer continued to question him. Dobbs confessed to Officer Fleischauer that he had been huffing for pain management, in addition to taking an antidepressant and prescribed pain medication. Dobbs said he had inhaled the air duster while driving, likely striking the pedestrian after he lost consciousness. ¶14 Dobbs was driven to another hospital medical clearance to be booked into the jail. to receive While at that hospital, Officer Van Hove heard Dobbs say twice, unprompted, that he had "taken a puff of Dust-Off and had killed a man" with his vehicle. Officer Van Hove did not ask any follow-up questions in response. ¶15 Shortly thereafter, Dobbs indicated he wanted to call his father, despite being warned that anything he said on the phone could ultimately be used in court. Officer Van Hove overheard Dobbs tell his father that he went to Menards to buy air duster, took a puff on his way home, and then drove over a curb and "killed a man." He also heard Dobbs say "he understood 6 No. his rights and wanted to be honest." 2018AP319-CR Later that night, Officer Bryan Dyer heard Dobbs spontaneously repeat the same story. ¶16 The next morning, despite Officer Dean Baldukas's reminder to Dobbs that he was under arrest "and still had rights associated with that," Dobbs blurted out, unprompted, that he had taken a puff of the air duster. Linda Baehmann and Bryan Dyer Additionally, Officers overheard similar spontaneous comments from Dobbs regarding huffing air duster. ¶17 Dobbs was ultimately charged with one count of homicide by intoxicated use of a vehicle and one count of hit and run resulting in death. ¶18 Prior to trial, the circuit court heard a number of motions, two of which are relevant to this appeal. The first was Dobbs's motion to suppress his statements on the grounds that: (1) he was not read the Miranda warnings despite being subject to statements custodial were not physical condition. interrogation; voluntarily made and due (2) all to his of mental his and The circuit court denied Dobbs's motion to suppress, concluding that the "first interrogation that would have required a Miranda warning, had the defendant been in custody, was the interview by [Officer] Pine," at 10:19 am, when Officer Pine first read Dobbs the Miranda warnings. Further, the circuit court concluded that "[e]ach of the statements made by the defendant to Officers Milton, Pine, Kleinfeldt, Van Hove, 7 No. 2018AP319-CR Dyer, Baldukas, and Baehmann has been demonstrated to have been voluntary and not the product of coercion in any degree."9 was ¶19 The second pre-trial motion relevant to this appeal the State's motion to exclude the testimony proffered experts, including Dr. Lawrence White. of Dobbs's The defense had named Dr. White to testify generally about the phenomenon of false confessions, as well as the interrogation techniques and dispositional characteristics that make false confessions more likely. The State argued Dr. White's testimony would not be relevant because there was no link between his testimony and the facts surrounding Dobbs's confessions. The State further argued that Dr. White's testimony would confuse the jury, invade the province of the jury as the ultimate assessor of credibility, and re-litigate the voluntariness of Dobbs's statements. In response, Dobbs alleged that Dr. White's testimony would assist the jury by dispelling a common misbelief that an innocent person would never confess to a crime he or she did not commit. ¶20 At the Daubert10 evidentiary stipulated to Dr. White's qualifications. hearing, the State Dr. White testified that he saw his role as a jury educator, lecturing about the social science and legal scholarship on false confessions and the general confessions. psychology He behind detailed the interrogation interrogation techniques techniques and that Dobbs filed a motion for reconsideration on his motion to suppress, which was denied. 9 10 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 8 No. could make an innocent person confess: with inculpatory innocence, evidence, being in police custody for 2018AP319-CR isolation, confrontation indifference over six to claims hours, of persistent questioning, minimization of the accused's culpability or the consequences, and implying lenient treatment would be given in return for a confession. Dr. White further described the dispositional characteristics that make a person more vulnerable to confessing falsely when interrogation techniques, old), intelligence, low predisposition, mental subject including: a disorders to these youth (under coercive 25 years suggestible or compliant like or depression, anxiety sleep deprivation, and physical exhaustion. Dr. White affirmed that he did not review any reports or the specific facts of Dobbs's case, and that he would not offer an ultimate opinion on the truthfulness of Dobbs's confessions. ¶21 The circuit court ruled that Dr. White's testimony would not assist the jury because he never reviewed Dobbs's case and therefore could not explicitly apply his expertise to the specific facts of the case. The circuit court determined his proffered testimony was a "lecture" at the "highest level of generality" which could not satisfy the requirement in Wis. Stat. § 907.02(1) (2017-18)11 that "the witness has applied the principles and methods reliably to the facts of the case." All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 11 9 No. ¶22 Dobbs moved for reconsideration. 2018AP319-CR The circuit court affirmed its original ruling but articulated a second rationale for excluding "fit" the Dr. White's particular exposition facts testimony: surrounding it Dobbs's did not confessions. Specifically, the circuit court found that Dobbs had made no showing that the police employed the types of coercive techniques that Dr. White would testify about. ¶23 At Baldukas, Dobbs's Baehmann, jury and trial, Van Hove Officers all Milton, testified to Dyer, Dobbs's confessions that he inhaled air duster prior to the accident. Dobbs took the witness stand and denied huffing any air duster while driving on the day of the accident. A jury ultimately found Dobbs guilty of homicide by intoxicated use of a vehicle.12 Dobbs was sentenced to 20 years imprisonment, consisting of 12 years of initial confinement followed by 8 years of extended supervision. ¶24 Dobbs decisions appealed, granting the challenging State's motion the to circuit exclude court's Dr. White's testimony and denying his motion to suppress his statements. ¶25 The court conviction in determined that an the of appeals unpublished, circuit affirmed per court the curiam "reasonably judgment decision. concluded of It that [Dr. White] would not assist the trier of fact unless [he] also applied his knowledge about false confessions to the specific The jury found Dobbs not guilty on the second count of hit and run. 12 10 No. circumstances in Dobbs's case." CR, unpublished slip op., ¶7 2018AP319-CR State v. Dobbs, No. 2018AP319– (Wis. Ct. App. May 2, 2019). Further, it affirmed the circuit court's decision on Dobbs's motion to suppress based on its determination that Dobbs was not entitled to Miranda warnings because he was not in custody when he was "first Additionally, placed the court in the of squad appeals car." Id., ¶¶11-14. rejected Dobbs's argument that his statements were not voluntarily made. ¶26 Dobbs granted. petitioned Additionally, following issue: consistent this we court asked the for Id., ¶¶15-17. review, parties to which brief we the "Whether the court of appeals' decision is with State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, and if not, whether Morgan should be overruled." II. ¶27 STANDARD OF REVIEW It is within the circuit court's discretion whether to admit proffered expert testimony. ¶15, 382 court's State v. Pico, 2018 WI 66, Wis. 2d 273, 914 N.W.2d 95. decision under an erroneous We review the circuit exercise of discretion standard and therefore we will not reverse a circuit court's decision if the decision "had a reasonable basis," and "was made in accordance with accepted legal standards and in accordance with the omitted) facts of (quoting record." State v. Id. (internal LaCount, 2008 WI quotation 59, marks ¶15, 310 Wis. 2d 85, 750 N.W.2d 780). ¶28 In evaluating a circuit court's decision on a motion to suppress, we uphold the circuit 11 court's findings of fact No. unless they are clearly erroneous. 2018AP319-CR State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. However, we independently apply constitutional principles to the facts as found by the circuit court to ensure that the scope protections do not vary from case to case. Wis. 2d 333, 344, 401 N.W.2d 827 (1987). of constitutional State v. Turner, 136 Whether Dobbs was in custody for purposes of Miranda is a question of law that we review de novo. State v. Mosher, 221 Wis. 2d 203, 211, 584 N.W.2d 553 (Ct. App. 1998). ¶29 Finally, in assessing the circuit court's decision on the voluntariness of Dobbs's statements, we independently apply the constitutional principles of due process to the facts as found by the circuit court. ¶34, 261 Wis. 2d 294, See State v. Hoppe, 2003 WI 43, 661 N.W.2d 407. Whether Dobbs's statements were voluntary is a question we review de novo. III. ¶30 Id. ANALYSIS We first address whether the circuit court reasonably exercised testimony. its discretion in excluding Dr. White's expert Next we consider whether any of the statements Dobbs gave before he was read the Miranda warnings should have been suppressed because he was subject to custodial interrogation, and if so, whether admission of those statements was harmless error. Finally we consider the voluntariness of statements in light of his mental and physical condition. 12 Dobbs's No. 2018AP319-CR A. The circuit court properly excluded Dr. White's exposition testimony on the grounds that it did not "fit" the facts of the case. ¶31 Dobbs Dr. White, sought who to would admit have the expert testified testimony generally of about interrogation techniques and dispositional factors that can lead an innocent person to falsely confess without directly opining on whether those techniques and factors led Dobbs to give a false confession. We refer to an expert witness testifying in the form of an educational lecture on general principles as exposition testimony. See Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173, 219 (2006) ("Expository testimony consists of a lecture or explanation on a specialized subject such as economics, accounting, engineering, medicine, or psychology."). ¶32 The circuit court excluded Dr. White's testimony after determining that it would not assist the trier of fact for two reasons: (1) Dr. White did not know, and thus could not apply his expertise to, the specific facts of the case, contrary to the language of Wis. Stat. § 907.02(1) that the expert witness "appl[y] the principles and methods reliably to the facts of the case"; and (2) Dobbs made no showing that Dr. White's exposition testimony would fit the facts of the case. We will not overturn the circuit court's exercise of discretion if the decision had a "reasonable basis" and was made in accordance with the proper legal standard and Wis. 2d 273, ¶15. the facts in the record. Pico, 382 We accept the circuit court's findings of 13 No. fact unless they are clearly erroneous. 2018AP319-CR Metro. Assocs. v. City of Milwaukee, 2018 WI 4, ¶25, 379 Wis. 2d 141, 905 N.W.2d 784. ¶33 Stat. The admission of expert testimony is governed by Wis. § 907.02. As originally enacted, § 907.02 permitted expert testimony in the form of an opinion or otherwise as long as the expert witness was qualified, the evidence assisted the trier of fact, and the evidence was relevant. § 907.02 (1973- 74); Seifert v. Balink, 2017 WI 2, ¶52, 372 Wis. 2d 525, 888 N.W.2d 816 § 907.02 (lead to opinion). permit This exposition court testimony initially without interpreted requiring an expert to "apply[] those factors to the concrete circumstances of th[e] case" or "stat[e] to the jury his own opinion." Hampton v. State, 92 Wis. 2d 450, 458, 285 N.W.2d 868 (1979). This court's reading of § 907.02 was consistent with the federal interpretation of the identical language as set forth in Federal Rule of Evidence 702 ("Rule 702").13 See Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993) ("An expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to 13 Rule 702 and Wis. Stat. § 907.02 both read: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Pub. L. No. 93–595, § 907.02 (1973-74). 88 Stat. 1926, 14 1937 (1975); Wis. Stat. No. the facts." (quoting Fed. R. Evid. 702, 2018AP319-CR Advisory Committee Notes14 to 1972 Proposed Rule 702)).15 ¶34 In reliability 2000, standard Rule 702 was articulated in amended Daubert to codify the v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny.16 In 2011, the Wisconsin legislature followed suit, renumbering Wis. Stat. § 907.02 to § 907.02(1) and amending it to expressly "adopt the Daubert 14 reliability standard embodied in Federal Rule of As Justice Shirley Abrahamson explained in Seifert: Under the Rules Enabling Act, 28 U.S.C. § 2072, the United States Supreme Court is authorized to promulgate rules of practice and procedure for the federal courts. This authority is exercised by the Judicial Conference of the United States. The Conference promulgates and changes rules of practice and procedure in the federal courts subject to oversight by the Court. For the Federal Rules of Evidence, the Judicial Conference is aided in its rule-making powers by the Evidence Advisory Committee; the members of and reporter to this Committee are appointed by the Chief Justice of the United States Supreme Court. Seifert v. Balink, 2017 WI 2, ¶55 n.13, 372 Wis. 2d 525, 888 N.W.2d 816 (lead opinion) (citing Paul R. Rice and Neals-Erik William Delker, Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence, 191 F.R.D. 678, 679 (2000)). Rule 702 served to expressly "encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference," as opposed to having an expert witness opine on hypotheticals before the jury. Hampton v. State, 92 Wis. 2d 450, 459, 285 N.W.2d 868 (1979) (quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972 Proposed Rule 702). 15 See General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). 16 15 No. Evidence 702." 2018AP319-CR State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336 Wis. 2d 478, 799 N.W.2d 865; see also State v. Jones, 2018 WI 44, ¶7, 381 Wis. 2d 284, 911 N.W.2d 97 ("These changes [to § 907.02] adopted the federal standard, which incorporates the analysis promulgated in Daubert . . . .") (citing Seifert, 372 Wis. 2d 525, ¶6); 2011 Wis. Act 2, Wis. S. Amend. Memo, 2011 Jan. Spec. Sess. S.B. 1 ("This language [in § 907.02(1)] is identical to the language of Rule 702 of the Federal Rules of Evidence."). Section 907.02(1) now reads: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. 2011 Wis. Act 2, § 34m (emphasis added to signify added language). ¶35 adopted Whether in Wis. the Daubert Stat. reliability § 907.02(1) standard altered expressly Wisconsin's long- standing practice of allowing expert exposition testimony is a question of first impression. In answering this question, we begin with the text of § 907.02(1). State ex rel. Kalal v. Cir. Ct. ¶45, for Dane N.W.2d 110. Cty., 2004 WI 58, 271 Wis. 2d 633, 681 We interpret the statutory language in the context in which it is used, not in isolation, and we consider prior case law in this inquiry as it 16 "may illumine how we have No. previously interpreted or applied the statutory 2018AP319-CR language." Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶16, 359 Wis. 2d 385, 856 N.W.2d 874 (quoting Belding v. Demoulin, 2014 WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373). Since § 907.02(1) is identical to the language of Rule 702, we also look to the federal interpretation of Rule 702 for guidance. See State v. Poly–America, Inc., 164 Wis. 2d 238, 246, 474 N.W.2d 770 (1991) ("When a state statute is modeled after a federal rule, we look to the federal interpretation of that rule for guidance and assistance."). Lastly, although not dispositive, we consider how other state courts have interpreted analogous state laws. See Seifert, 372 Wis. 2d 525, ¶55 (lead opinion). ¶36 expert to The text testify of "in Wis. the Stat. form of § 907.02(1) an opinion permitting or an otherwise" remains unchanged by the addition of the Daubert reliability standard. Hampton, See Wis. Stat. § 907.02(1). the phrase "or otherwise" As we recognized in signifies that expert testimony may take a form other than an opinion, which courts should encourage when the trier of fact can itself draw the 17 No. requisite inference from the facts of the case.17 2018AP319-CR Hampton, 92 Wis. 2d at 459; see also Hagenkord v. State, 100 Wis. 2d 452, 463, 302 N.W.2d 421 (1981) ("Testimony by experts is not limited to giving specialized opinions or to knowledge."). the stating A reading of of facts derived § 907.02(1) from that requires an expert to apply his or her expertise to the facts of the case would result in an expert always providing some type of Circuit courts need this flexibility to limit otherwise relevant and reliable expert testimony that, if given in the form of an opinion, would invade the prerogative of the finder of fact. See Hampton, 92 Wis. 2d at 458 (holding that the circuit court did not erroneously exercise its discretion by limiting an eyewitness identification expert to only provide exposition testimony rather than rendering an opinion on the reliability of any of the eyewitnesses' identifications in the case); 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 608.3, at 560 (4th ed.) ("Indeed, the supreme court has encouraged the use of expert evidence in non-opinion form because such expository testimony assists the jury while minimizing the risk that the jury will surrender its autonomy to the expert. A judge reluctant to introduce Jensen evidence may nonetheless permit exposition to assist the jury without sacrificing the record." (footnote omitted) (citing State v. Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988))). 17 18 No. 2018AP319-CR an opinion about the matter18 and would render the phrase "or otherwise" inoperative. Such a reading would violate this court's interpretive canon "to give reasonable effect to every word" in a statute. ¶37 There § 907.02(1) Kalal, 271 Wis. 2d 633, ¶46. is that a gives reasonable effect reading to both of the Wis. Stat. language "or otherwise" and the condition that "the witness has applied the principles and methods reliably to the facts of the case." If the expert is testifying in the form of an opinion, he or she is applying the principles or methods to the specific facts of the case and must therefore do so reliably. is testifying in a form other than If, however, the expert an opinion, such as an exposition, then the expert would not be applying principles or For example, in this case, if Dr. White applied the principles and methods to the facts of the case, he would be giving an opinion on whether or not Dobbs's dispositional factors combined with the police interrogation techniques could have resulted in Dobbs falsely confessing. It is important to recognize that if Dr. White offered such an opinion, it would invade the province of the factfinder as the sole determiner of credibility. Cf. State v. Kleser, 2010 WI 88, ¶104, 328 Wis. 2d 42, 786 N.W.2d 144 ("The essence of the rule prohibiting vouching testimony is that such testimony invades the province of the fact-finder as the sole determiner of credibility." (citing State v. Haseltine, 120 Wis. 2d 92, 95-96, 352 N.W.2d 673 (Ct. App. 1984))). Even if Dr. White had simply been asked whether any of the factors he described in his exposition testimony related to Dobbs's case, his response would be offering his view about whether his exposition testimony relates to the particular facts in Dobbs's case. This is the very definition of an opinion. See "Opinion," MerriamWebster Online Dictionary (2020), https://www.merriamwebster.com/dictionary/opinion ("[A] view . . . formed in the mind about a particular matter."). 18 19 No. 2018AP319-CR methods to the facts of the case and it would be nonsensical to require him or her to do so reliably. ¶38 A exposition reading of Wis. Stat. testimony is consistent § 907.02(1) with the permitting intent of the drafters of Rule 702, as evidenced by the Advisory Committee Notes to the 2000 Amendment. See Guertin v. Harbour Assur. Co. of Bermuda, 141 Wis. 2d 622, 628–29, 415 N.W.2d 831 (1987) ("The 'written comments of legislatively created advisory committees are relevant in construing statutes and ascertaining the legislative intent of statutes recommended by such committees.'" (quoting Champlin v. State, 84 Wis. 2d 621, 625, 267 N.W.2d 295 (1978))). clarify The Advisory Committee Notes to the 2000 Amendment that the amendment was not intended to alter the established practice of admitting exposition testimony without requiring an expert to apply those principles to the facts of the case. If an expert purports to apply principles and methods to the facts of the case, it is important that this application be conducted reliably. It might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. For example, experts might instruct the factfinder on the principles of thermodynamics, or bloodclotting, or on how financial markets respond to corporate reports, without ever knowing about or trying to tie their testimony into the facts of the case. The amendment does not alter the venerable practice of using expert testimony to educate the factfinder on general principles. Fed. R. Amendment Evid. 702, (emphasis Advisory added). Committee The 20 Notes drafters of to the Rule 2000 702(d) No. 2018AP319-CR intended it to mean that if the expert gives opinion testimony, then the expert must reliably apply the principles and methods to the facts of the case. ¶39 Rule Federal 702 to courts continue of to appeals permit also the uniformly admission of interpret exposition testimony without an expert applying general principles to the specific facts of the case. For example, "[t]he federal courts uniformly hold . . . that government agents or similar persons may testify as to general practices of criminals to establish the defendants' modus operandi." United States v. Mejia-Luna, 562 F.3d 1215, 1219 (9th Cir. 2009); see also United States v. Skyers, 787 F. App'x 771, 774 (2d Cir. 2019) (summary order) (upholding admission of a detective's expert testimony that "generally explained" a drug trafficking circle because it "was relevant to helping the jury understand the general nature of international States v. narcotics Reed, 788 trafficking F. App'x 903, organizations"); 906 (4th Cir. United 2019) (unpublished per curiam) ("Rule 702 did not require [the expert witness] to explicitly link his testimony to the specific facts of [the] case."); United States v. Galatis, 849 F.3d 455, 462 (1st Cir. 2017) (holding a Medicare-fraud investigator could describe the applicable regulatory regime without ever applying the regulations to the facts of the case or suggesting that any actions had F.3d 802, violated 809 (7th the Cir. law); 2012) Lapsley ("As the v. Xtek, Rule 702 Inc., 689 committee notes . . . make clear, an expert may . . . 'give a dissertation or exposition of scientific or other principles relevant to the 21 No. 2018AP319-CR case, leaving the trier of fact to apply them to the facts.'" (quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972 Proposed Rule 702)). ¶40 even Federal know the courts acknowledge specific facts requirements of Rule 702. of that the an expert case to need not satisfy the See United States ex rel. Miller v. Bill Harbert Int'l Const., Inc., 608 F.3d 871, 893-96 (D.C. Cir. 2010) (per curiam) (upholding the admission of an expert witness who had no direct knowledge of the facts in the case, but whose testimony on how bid-rigging cartels work in general was sufficiently connected to the facts to be relevant and helpful to the jury); see also United States v. Warren, 774 F. App'x 778, 780-82 (4th Cir. 2019) (unpublished per curiam) (concluding that a FBI agent, "who acknowledged that he had no information regarding the facts of [the] case," could permissibly "testif[y] generally about human trafficking" to put the case into context for the jury); United States v. Brinson, 772 F.3d 1314, 1319-20 (10th Cir. 2014) (rejecting the argument that an expert without knowledge of the specific case facts was unreliable because he testified generally "about characteristics of the prostitution trade" rather than "about case-specific facts"). ¶41 State supreme courts faced with this issue have likewise interpreted state statutes modeled after Rule 702 to allow for the admission of expert exposition testimony. The Arizona Supreme Court was recently faced with a claim that the same statutory language——"the expert has reliably applied the 22 No. 2018AP319-CR principles and methods to the facts of the case"——necessitates that the expert expertise to, have the knowledge particular of, facts and of apply the his case. or State her v. Salazar-Mercado, 325 P.3d 996 (Ariz. 2014) (interpreting Ariz. R. Evid. 702). Citing federal case law and the Advisory Committee Notes, the Arizona Supreme Court held that its expert testimony rule "does testimony that educates principles case."19 but is not not bar the tied admission trier to Id. at 997-99, 1001. the of of fact 'cold' about particular expert general facts of the The South Dakota Supreme Court likewise reached the same conclusion. See State v. Johnson, 860 N.W.2d 235, 247-48 (S.D. 2015) ("[A]n expert's testimony may be admissible expert's general [pursuant sole to function principles, S.D. is without Stat. 'to ever § 19-19-702] educate the attempting even if factfinder to apply the about [those] principles to the specific facts of the case.'" (alteration in original) (quoting Salazar-Mercado, 325 P.3d at 999)); see also In a similar vein, the Utah Supreme Court recognized that its state's adoption of the Rule 702 language resolved the "Catch-22" expert witnesses faced when testifying to eyewitness reliability. State v. Clopten, 223 P.3d 1103, 1106-07, 1114 (Utah 2009) (interpreting Utah R. Evid. 702 (2009)). Under Utah's prior rule, eyewitness experts whose testimony was too specific would be excluded for invading the province of the factfinder, while experts whose testimony was too general would be excluded for lecturing rather than dealing with the specific facts of the case. Id. The Utah Supreme Court concluded that the recent amendment to its own expert witness rule adopting the language of Rule 702 now permitted an eyewitness expert to "'give a dissertation or exposition' of factors found in the case that are understood to contribute to eyewitness inaccuracy." Id. at 1114. 19 23 No. 2018AP319-CR State v. Marshall, 596 S.W.3d 156, 160-62 (Mo. Ct. App. 2020) (interpreting Mo. Stat. § 490.065.2(1)). ¶42 We conclude that Wis. Stat. § 907.02(1) continues to permit an expert witness to testify in the form of an opinion "or otherwise," including exposition testimony on general principles without explicitly applying those principles to, or even having knowledge of, the specific facts of the case. If an expert testifies in the form of an opinion, then the expert must apply the principles and methods reliably to the facts of the case. ¶43 Our inquiry does not end there, however, because the admissibility of exposition testimony § 907.02(1) is not automatic. pursuant to Wis. Stat. "[T]he trial judge stands as a gatekeeper to prevent irrelevant or unreliable testimony from being admitted." Wis. 2d 284, Lapsley, 689 F.3d at 809; see also Jones, 381 ¶¶31-32 ("[T]he heightened standard under the amended Wis. Stat. § 907.02(1) does not change this gatekeeping function."). an exposition gatekeeper, When expert testimony is proffered in the form of on must general principles, consider the the circuit following four court, as factors: (1) whether the expert is qualified; (2) whether the testimony will address a subject matter on which the factfinder can be assisted by an expert; (3) whether the testimony is reliable; 24 No. 2018AP319-CR and (4) whether the testimony will "fit" the facts of the case.20 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 702.4032, at 673-74 (4th ed. 2017) (citing Fed. R. Evid. 702, Advisory Committee Notes to the 2000 Amendment). party proffering satisfying each the expert of these testimony bears preliminary preponderance of the evidence. the burden questions by The of a Wis. Stat. § 901.04; see also This four-part inquiry is consistent with how federal courts analyze exposition testimony. See, e.g., United States ex rel. Miller v. Bill Harbert Int'l Const., Inc., 608 F.3d 871, 894-96 (D.C. Cir. 2010) (per curiam); Burton v. Am. Cyanamid, 362 F. Supp. 3d 588, 601-02 (E.D. Wis. 2019); Emblaze Ltd. v. Apple Inc., 52 F. Supp. 3d 949, 959-61 (N.D. Cal. 2014); Konikov v. Orange Cty., 290 F. Supp. 2d 1315, 1317 (M.D. Fla. 2003); Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 612 n.30 (D.N.J. 2002), aff'd, 68 F. App'x 356 (3d Cir. 2003); TC Sys. Inc. v. Town of Colonie, 213 F. Supp. 2d 171, 175, 178-79 (N.D.N.Y. 2002); see also Fed. R. Evid. 702, Advisory Committee's Notes to 2000 Amendments; 32 C.J.S. Evidence § 801 (2020); Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173, 219 & n.215 (2006). State courts with an expert evidentiary rule modeled after Rule 702 similarly recognize this test as the proper one for exposition testimony. See State v. Johnson, 860 N.W.2d 235, 248 (S.D. 2015); State v. Marshall, 596 S.W.3d 156, 160-61 (Mo. Ct. App. 2020). 20 These considerations differ slightly from the considerations to admit opinion testimony of an expert: (1) whether the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; (2) whether the expert is qualified as an expert by knowledge, skill, experience, training, or education; (3) whether the testimony is based upon sufficient facts or data; (4) whether the testimony is the product of reliable principles and methods; and (5) whether the witness has applied the principles and methods reliably to the facts of the case. State v. Jones, 2018 WI 44, ¶29, 381 Wis. 2d 284, 911 N.W.2d 97. 25 No. 2018AP319-CR Seifert, 372 Wis. 2d 525, ¶58 (lead opinion) (citing Daubert, 509 U.S. at 593); Blinka, supra, § 702.403, at 672. ¶44 Fit "goes primarily to relevance," Daubert, 509 U.S. at 591, and is tied to the gatekeeping function the circuit courts perform under Wis. Stat. § 904.01. Whether expert testimony "fits" a case turns on whether it is "sufficiently tied to the facts of the case" such that "it will aid the jury in resolving a factual dispute." Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (1985)). "[E]xpert testimony is helpful to the jury," or fits, "if it concerns a matter beyond the understanding of the average person, assists the jury in understanding facts at issue, or puts the facts F.3d 970, grounds, 974 543 in context." (7th Cir. U.S. 1112 United 2004), States judgment (2005). v. Welch, vacated Establishing on the 368 other fit of exposition testimony is particularly important because, unlike opinion itself testimony, explicitly exposition connect the particular facts of the case. Med. Ctr., 576 testimony does witness's not in and expertise to of the See Trout v. Milton S. Hershey F. Supp. 2d 673, 677 (M.D. Pa. 2008) ("Generalized expert testimony that is factually disconnected from the case is inadmissible because it does not assist the jury in rendering a verdict based on the material facts in issue.") (citing Elcock v. Kmart Corp., 233 F.3d 734, 755 n.12 (3d Cir. 2000)). ¶45 In Dr. White's this case, exposition the circuit testimony 26 did court not fit determined the that particular No. 2018AP319-CR facts of Dobbs's case because Dobbs "made no showing that the types of tactics that were employed in [his] case would correspond to any of the generalized opinions that Dr. White holds about false confessions and police interrogations." conclude that the circuit court applied the proper We legal standard for admission of exposition testimony in assessing the fit of Dr. White's testimony to the facts of the case. therefore circuit uphold court its had exercise "a of reasonable discretion basis," so long applying We as the the proper legal standard "in accordance with the facts of record." Pico, 382 Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15). ¶46 Dr. White testified that he would educate the jury on police interrogation person confess: techniques isolation, that could confrontation make an with innocent inculpatory evidence, police indifference to claims of innocence, being in custody for over six hours, persistent questioning, minimization of the accused's culpability or the consequences, and implying lenient treatment will be given in return for a confession. Dr. White also dispositional police testified he characteristics interrogation would that, techniques, vulnerable to falsely confessing: low intelligence, a suggestible educate when make an the jury combined with accused person on those more youth (under 25 years old), or compliant predisposition, mental disorders like anxiety or depression, sleep deprivation, and physical exhaustion. ¶47 assisted According to Dobbs, Dr. White's testimony would have the jury in assessing 27 the truthfulness of Dobbs's No. confessions to police by correcting a common 2018AP319-CR misbelief that innocent people do not confess to crimes they did not commit. Dobbs further circumstances dispositional argues and that he established Dr. White's testimony factors——anxiety, a "fit" based depression, with his on his and sleep deprivation——combined with the police using the interrogation technique of confronting him with evidence suggesting his guilt. ¶48 this We acknowledge that the circuit court could have found narrow overlap provided a sufficient fit Dr. White's testimony and the facts of Dobbs's case.21 between This is a matter of circuit court discretion, however, and therefore our role on review is to "search the record for reasons to sustain the circuit court's exercise of discretion." Pico, 382 Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15). The Innocence Project, Inc. and The Wisconsin Innocence Project, as amicus curiae, argue that once the presence of even one of the recognized risk factors is shown, the Daubert threshold for fit is satisfied and at that point the circuit court loses any discretion in the matter. A circuit court, in its discretion, might reasonably decide that the testimony is not beyond the understanding of the average person, does not assist the jury in understanding facts at issue, or does not put the facts in context. United States v. Welch, 368 F.3d 970, 974 (7th Cir. 2004), judgment vacated on other grounds, 543 U.S. 1112 (2005). 21 Additionally, the circuit court may always exclude expert testimony, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Wis. Stat. § 904.03. 28 No. ¶49 2018AP319-CR The circuit court found that Dobbs was not subject to most of the types of coercive interrogation techniques described by Dr. White. Dobbs had not been in custody for over six hours, was not persistently interrogated while in custody, nor was he isolated for much of that time. The police did not attempt to lessen his culpability or offer him leniency if he confessed. The police did not fabricate incriminating evidence. The record further contains at least six instances of Dobbs spontaneously admitting to huffing the air duster absent any coercive police tactics. ¶50 Additionally, our review of the record indicates that Dobbs did not possess most of the characteristics that Dr. White would testify may predispose an individual to falsely confess if coercive younger interrogation than 25 years techniques old and were did used. not claim Dobbs to be was not of low intelligence or particularly suggestible. ¶51 The circuit court could have reasonably concluded that Dr. White's exposition testimony regarding situational factors that increase the likelihood of false confessions would not assist the trier of fact to understand the evidence, especially in light of the numerous spontaneous confessions introduced into evidence. See United States v. Mamah, 332 F.3d 475, 477-78 (7th Cir. 2003) (upholding the exclusion of expert testimony for lack of fit where the defendant had previously been subjected to coercive interrogation tactics, but the confession at issue was made at a later point when the defendant was not subjected to those tactics). We conclude that the circuit court properly 29 No. 2018AP319-CR exercised its discretion in excluding Dr. White's testimony on the grounds that it did not sufficiently fit the facts of Dobbs's case. B. Dobbs was subject to custodial interrogation without being read Miranda warnings, but the admission of those statements was harmless error. ¶52 Dobbs moved to suppress the statements he made from approximately 7:30 a.m. to 10:19 a.m. on the grounds that he was subject to warnings, custodial violating incrimination. interrogation his The Fifth Fifth and not Amendment Amendment read right to the the Miranda against United selfStates Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."22 In order to protect the rights secured by the Fifth Amendment, the United States Supreme Court held that the government "may not use statements, from custodial demonstrates the whether exculpatory interrogation use of of or the procedural inculpatory, defendant safeguards secure the privilege against self-incrimination." Arizona, 384 U.S. 436, 444 (1966). stemming unless it effective to Miranda v. Pursuant to Miranda, no suspect may be subjected to custodial interrogation until he is "warned that he has a right to remain silent, that any statement The Wisconsin Constitution similarly provides that "[n]o person . . . may be compelled in any criminal case to be a witness against himself or herself." Wis. Const. Art. I, § 8. This court has generally interpreted this provision consistent with the United States Supreme Court's interpretation of the Fifth Amendment to the federal Constitution. See State v. Ward, 2009 WI 60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236. 22 30 No. 2018AP319-CR he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. Incriminating statements made in violation of Miranda must be suppressed, id., unless the admission of the statements was harmless error. ¶53 Since custody is "a necessary prerequisite to Miranda protections," we must first resolve whether Dobbs was "in custody," as that term is understood in the Miranda context. State v. Lonkoski, N.W.2d 552. 2013 WI 30, ¶23, 346 Wis. 2d 523, 828 A person is in custody for Miranda purposes if "there is a formal arrest or restraint on freedom of movement of a degree associated with a formal arrest." State v. Bartelt, 2018 WI 16, ¶31, 379 Wis. 2d 588, 906 N.W.2d 684 (quoted source omitted); see also California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) ("Although the circumstances of each case must certainly influence a determination of whether a suspect is 'in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (quoted source omitted)). ¶54 This objective test totality of the circumstances. ¶¶31-32; (1995). see also Thompson requires us to examine the See Bartelt, 379 Wis. 2d 588, v. Keohane, 516 U.S. 99, There are several factors we consider, including: 112-13 "the defendant's freedom to leave; the purpose, place, and length of the interrogation; Martin, 2012 WI and 96, the ¶35, degree 343 31 of restraint." Wis. 2d 278, 816 State v. N.W.2d 270 No. (quoting Morgan, 254 Wis. 2d 602, ¶12). "degree of restraint," handcuffed, whether performed, whether the the a we weapon manner suspect consider in is is which moved to When evaluating the "whether drawn, the 2018AP319-CR the whether suspect another is suspect a frisk is is restrained, location, whether questioning took place in a police vehicle, and the number of officers involved." ¶55 Morgan, 254 Wis. 2d 602, ¶12. As the State conceded, in both its brief23 and at oral argument,24 Dobbs was in custody at some point while he was being questioned in the squad car and therefore Miranda warnings were required well before Officer Pines first read them at 10:19 a.m. While we accept that concession, we also explain why, under the totality of the circumstances, a reasonable person in Dobbs's position would have felt a restraint on his freedom of movement of a degree associated with formal arrest and why he was For example, the State conceded that "Dobbs's statements in response to inquisitorial questions before he waived his Miranda rights probably should have been suppressed because Dobbs was probably in custody at some point while he was being questioned." 23 As argument: 24 the assistant attorney general conceded at At some point when you look at the [State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684] factors, it would appear that at some point because he was frisked, he was handcuffed, he was in the back of a locked squad car, and he was asked some questions, some of which were not inquisitorial and some of them may have been. So I think at some point during that hour, it is likely that it changed into a custodial type situation. 32 oral No. therefore in custody for purposes of Miranda. 2018AP319-CR But first, we answer the question we presented to the parties: "Whether the court of appeals' decision is consistent with State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, and if not, whether Morgan should be overruled." ¶56 In Morgan, 254 Wis. 2d 602, ¶13, the court of appeals emphasized that the analyses required by the Fourth Amendment and Fifth Amendment are distinct, despite some lack of clarity in the case law. See United States v. Smith, 3 F.3d 1088, 1096 (7th ("[O]ur Cir. temporary analysis 1993) detention requires for a inquiry a Fifth different Amendment Terry25 stop."). into and focus the Sixth than circumstances Amendment that for a of Miranda Fourth The court of appeals in this case fell prey to this confusion when it relied upon Blatterman, a Fourth Amendment claim.26 See case, Dobbs, to No. resolve Dobbs's 2018AP319–CR, Fifth ¶¶12-13 Amendment (per curiam) (relying exclusively on State v. Blatterman, 2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26). 25 Terry v. Ohio, 392 U.S. 1 (1968). In her concurrence in Martin, then-Chief Justice Shirley Abrahamson made a "cautionary point" that "[i]t is possible that some past cases have cited Fourth Amendment cases while deciding Fifth Amendment issues or cited Fifth Amendment cases while deciding Fourth Amendment issues. Going forward, this court should be cautious to avoid conflating closely related constitutional standards and analyses." State v. Martin, 2012 WI 96, ¶¶72, 77, 343 Wis. 2d 278, 816 N.W.2d 270 (Abrahamson, C.J., concurring). 26 33 No. ¶57 and Fifth different Fourth 2018AP319-CR We uphold Morgan and clarify that the Fourth Amendment Amendment protect inquiries. Amendment A rights different claimed interests violation involves balancing of and a the involve defendant's government's interest in crime prevention against an individual's right to be free from government intrusion. See Morgan, 254 Wis. 2d 602, ¶14 (citing Terry v. Ohio, 392 U.S. 1, 19-27 (1968)). When evaluating a Terry stop under the Fourth Amendment, this court considers the totality of the circumstances leading up to the stop and focuses on "the reasonableness of the officers' actions in the situation facing them." State v. Miller, 2012 WI 61, ¶30, 341 Wis. 2d 307, 815 N.W.2d 349 (quoted source omitted). ¶58 The Fifth Amendment protects a different interest: the right not to be compelled to incriminate oneself. 254 Wis. 2d 602, ¶15. based on the need defendant's trial. Morgan, We require Miranda warnings to be given to protect the fairness of a criminal Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 240 (1973)). It is well-settled that at the point in time where an individual's freedom of action is "curtailed to a 'degree associated with a formal arrest'" under the totality of the circumstances, the safeguards of Miranda become applicable. Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting Beheler, 463 U.S. at 1125). ¶59 A brief detention, such as a traffic stop, typically does not rise to the level of "custody" for purposes of Miranda. See Berkemer, 468 U.S. at 437-40. However, if under the totality of the circumstances a detained motorist's freedom of 34 No. 2018AP319-CR action is curtailed to a degree associated with a formal arrest, he or she is entitled to prescribed by Miranda." the "full panoply of protections Id. at 440 (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)); see State v. Griffith, 2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72 (noting that the United States Supreme Court has "made clear that if a detained motorist is treated in such a manner that he or she is rendered 'in custody' for practical purposes, Miranda protections are triggered."); State v. Gruen, 218 Wis. 2d 581, 594, 582 N.W.2d 728 defendant was (Ct. detained App. pursuant 1998) ("[T]he to Terry a fact stop that does a not automatically dispel the need for Miranda warnings."). ¶60 We therefore recognize the distinction between an analysis of a violation of the Fourth and Fifth Amendment as aptly described in Morgan, 254 Wis. 2d 602, ¶¶13-16. Having clarified this framework and identified the court of appeals' error in relying on Blatterman, 362 Wis. 2d 138, we return to the facts of Dobbs's case. ¶61 Miranda We conclude that Dobbs was in custody for purposes of protections because, under the totality of the circumstances, a reasonable person would have considered himself restrained to a degree associated Martin, 343 Wis. 2d 278, ¶¶34-35. with formal arrest. See First, Dobbs was never free to leave from the moment Officer Milton blocked Dobbs's vehicle and handcuffed him in a locked squad car. In each of the locations Dobbs was taken, he was either locked in, guarded by armed law enforcement, or both. 35 This was not like a routine No. 2018AP319-CR traffic stop where if Dobbs had successfully performed the field sobriety tests, he would have been free to leave. Swanson, 164 Wis. 2d 437, 452, 475 N.W.2d 148, See State v. abrogated on other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277 ("A reasonable person would understand a request to perform a field sobriety test to mean that if he or she passed the test, he or she would be free to leave."). ¶62 Second, interrogation," as to Martin, the "place[] 343 and Wis. 2d 278, length ¶35, of the Dobbs was initially questioned by Officer Milton in his parked, locked squad car from 7:31 a.m. until 8:52 a.m., with a short break to complete field sobriety tests. Dobbs was then subjected to more questioning at the hospital by several armed officers. Unlike a brief traffic stop, the place of interrogation did not expose Dobbs to public view and would have caused a reasonable person to feel completely at the mercy of police. See Berkemer, 468 U.S. at 437-40. ¶63 Ultimately, Dobbs was not read the Miranda warnings until almost three hours after he was first handcuffed and put in the backseat of a locked squad car. Three hours is significantly longer than the 30 minutes of questioning in a patrol car that the United States Supreme Court has implied rises to the level of custody for purposes of Miranda. On multiple to occasions the Supreme Court has cited favorably Commonwealth v. Meyer, 412 A.2d 517 (Pa. 1980), which concluded that a driver was in custody for purposes of Miranda when he was detained for over 30 minutes, part of the time in a patrol car, 36 No. and subject to questioning. See Berkemer, 468 2018AP319-CR U.S. at 427 nn.7 & 8, 441 n.34; see also Pennsylvania v. Bruder, 488 U.S. 9, 11 n.2 (per curiam) ("[T]he motorist in Meyer could be found to have been placed in custody for purposes of Miranda safeguards because he was detained for over half an hour, and subjected to questioning while in the patrol car."). ¶64 Lastly, we examine the degree of restraint, which includes "whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is restrained, whether the suspect is moved to another location, whether questioning took place in a police vehicle, and the number of officers involved." ¶12. A degree of restraint was Morgan, 254 Wis. 2d 602, used when Officer Milton initially blocked Dobbs's car and ordered him out while holding onto his service weapon. Dobbs was then frisked, handcuffed, and locked in the backseat of Officer Milton's squad car while being questioned for the first hour. Dobbs was not told "no" when he asked whether he was going to be arrested and whether he was going to jail. Cf. State v. Quigley, 2016 WI App 53, ¶¶36- 43, 370 Wis. 2d 702, 883 N.W.2d 139 (holding that the defendant was not in custody for purposes of Miranda where he was told numerous times during questioning in an unlocked room that he was not under arrest and was free to leave). Dobbs was also surrounded by multiple officers at all times on the scene and at the hospital, as many as four officers at one time. ¶65 Unlike in Gruen, 218 Wis. 2d at 598, where the defendant was not in custody for purposes of Miranda because he 37 No. was only held handcuffs and in a asked police van "three for short, 10-15 2018AP319-CR minutes general, without common-sense investigatory questions," Dobbs was initially questioned for an hour while handcuffed in a locked squad car. Just as the defendants in New York v. Quarles, 467 U.S. 649, 655 (1984), and Morgan, 254 Wis. 2d 602, were determined to be in custody for purposes of Miranda because they were surrounded by multiple officers and handcuffed27 at the time of questioning,28 Dobbs's freedom was restricted to the degree associated with formal arrest. ¶66 Having concluded that, under the totality of the circumstances, Dobbs was in custody for purposes of Miranda well before 10:19 a.m., we must next ascertain whether he was subject to interrogation. Custodial interrogation can take two forms: express questioning or its functional equivalent. See State v. Harris, 2017 WI 31, ¶15, 374 Wis. 2d 271, 892 N.W.2d 663; see also Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("[T]he term 'interrogation' under Miranda refers not only to express While we have recognized that the use of handcuffs alone "does not in all cases render a suspect in custody for Miranda purposes," Martin, 343 Wis. 2d 278, ¶34, this case involves other factors relevant to the degree of restraint. 27 These cases are distinguishable from Torkelson, where the court concluded that a reasonable person in the defendant's position "would not believe his freedom was restricted to a 'degree associated with formal arrest'" after being briefly questioned by one officer in an area open to the public and not handcuffed or physically restrained. State v. Torkelson, 2007 WI App 272, ¶20, 306 Wis. 2d 673, 743 N.W.2d 511 (quoted source omitted). 28 38 No. 2018AP319-CR 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.") (footnotes omitted). "Express questioning" does not encompass every inquiry that is directed to a suspect, it covers only those "designed to elicit incriminatory admissions." Harris, 374 Wis. 2d 271, ¶16 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14 (1990)). Therefore, it is "the nature of the information the question is trying to reach" that determines whether a question is inquisitorial. ¶67 Id., ¶17. As the State concedes, Officer Milton's questions and statements about the damage to Dobbs's vehicle, his depression and anxiety, and injuries to his face were intended to illicit incriminatory inquisitorial.29 admissions and Accordingly, therefore we conclude were that likely under the We need not determine which questions and statements were intended to illicit incriminatory admissions. However, the questions Officer Milton asked Dobbs included: 29 Do you have any medical issues other than that splint that you were wearing?" "Do you take anxiety?" "Do you have any injuries from the collision with the curb? "So [those bruises and scratches on your face] are all old?" medications 39 for depression and No. 2018AP319-CR totality of the circumstances, Dobbs was subject to custodial interrogation for purposes of Miranda.30 for at least some admitted at trial. of Dobbs's Therefore, it was error pre-Miranda statements to be However, because we determine the error in admitting Dobbs's statements was harmless, we need not resolve precisely which statements should have been suppressed by the circuit court. ¶68 Admitting Dobbs's pre-Miranda statements was harmless error if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Martin, 343 Wis. 2d 278, ¶45 (quoted source omitted). Accordingly, the State must prove "that the error complained of We also note that Officer Milton's comments "I smell alcohol" and "its obvious you hit something" could also be considered the functional equivalent to express questioning. Rejecting the State's concession that Dobbs was subject to custodial interrogation because she finds it "ill-advised," Justice Ziegler reframes this case in a way that was neither briefed nor argued by the parties: "To me, the actual issue in this case is whether law enforcement's investigatory detention of Dobbs under Terry turned into custody under Miranda for Fourth and Fifth Amendment purposes." Justice Ziegler's concurrence, ¶101. Justice Ziegler further declares that "The extent to which a stop can be reasonable under Terry for Fourth Amendment purposes and, nonetheless, render the suspect in custody under Miranda for Fifth Amendment purposes is an issue subject to a federal circuit court split." Id., ¶99. Although the discussion that follows demonstrates that a few circuits simply frame the issue differently, as opposed to being "split," we focus only on whether Dobbs was in custody for purposes of Miranda, which the State expressly concedes. See Springer v. Nohl Elec. Prods. Corp., 2018 WI 48, ¶40, 381 Wis. 2d 438, 912 N.W.2d 1 ("[T]he court must always be careful not to gratuitously address issues unnecessary to the resolution of the matter before us"). 30 40 No. did not contribute to the verdict obtained." 2018AP319-CR State v. Mayo, 2007 WI 78, ¶47, 301 Wis. 2d 642, 734 N.W.2d 115 (quoted source omitted). ¶69 All of Dobbs's incriminating statements about huffing air duster before hitting the pedestrian were made to Officers Milton and Fleischauer following Dobbs's waiver of his Miranda rights, or were made to officers, hospital staff, and his father spontaneously. statements To the introduced extent into that evidence Dobbs's were five pre-Miranda incriminating, they were also independently testified to by other witnesses or were inconsequential to the crime of homicide by intoxicated use of a vehicle, the only crime for which Dobbs was convicted. ¶70 First, Officer Milton testified that Dobbs told him "he had gone to Menards and he was on his way home." was independently Menards accident. receipt introduced for air by Officer duster dated Frey, the who This fact found morning of the the Second, Officer Milton testified that Dobbs "admitted to having hit a curb," a fact that a witness to the accident testified to at trial. Third, Dobbs told Officer Milton he "had a few beers the previous evening," but the jury heard that there was no alcohol detected in Dobbs's blood. Fourth, Dobbs told Officer Milton that he "suffered from depression and anxiety and he took medications painkillers." Dobbs for those testified conditions and his medications. at conditions, trial about as his well as medical Finally, the jury heard that Dobbs said "none of the injuries on his face were as a result of the accident." However, identifying when Dobbs received his 41 No. facial injuries was not relevant to proving homicide by intoxicated use of a vehicle. 2018AP319-CR he committed We therefore conclude that any error in admitting Dobbs's pre-Miranda statements "did not contribute to the verdict obtained," and was harmless. ¶71 C. All of Dobbs's statements were voluntary. In the statements both alternative, before and Dobbs after moved to was read he suppress the his Miranda warnings because he alleged they were not voluntarily made. its written decision, the circuit court merely said: In "Each of the statements made by the defendant to Officers Milton, Pine, Kleinfeldt, Van demonstrated to Hove, have Dyer, been Baldukas voluntary and and Baehmann not the has been product of coercion in any degree." ¶72 When a defendant challenges the voluntariness of the statements he made to law enforcement the State bears the burden of showing by a preponderance statements were voluntary. of the evidence that the See State v. Moore, 2015 WI 54, ¶55, 363 Wis. 2d 376, 864 N.W.2d 827. We evaluate voluntariness in light of all the circumstances surrounding the interrogation and balance the defendant's personal actions of law enforcement. characteristics See id., ¶56. against the We cannot properly label a statement involuntary unless there is "some affirmative evidence procure of a improper confession." police Id. practices (quoting deliberately State Wis. 2d 222, 239, 401 N.W.2d 759 (1987). v. used Clappes, to 136 A defendant's personal characteristics alone "cannot form the basis for finding that the suspect's confessions, admissions, 42 or statements are No. involuntary." Wis. 2d 294, necessary (citing Moore, ¶37 363 Wis. 2d 376, ("Coercive prerequisite Colorado v. for ¶56; see or improper police a finding of Connelly, 479 U.S. 2018AP319-CR Hoppe, conduct 261 is a involuntariness." 157, 167 (1986))); Clappes, 136 Wis. 2d at 239. ¶73 Dobbs asks this court to conclude that his statements to the police were involuntary without providing any evidence of improper police conduct or coercion. to his personal characteristics, Instead, he points solely namely his "physical and emotional duress" on September 5, 2015, including: his swollen and infected hand that he had not taken his painkillers or antibiotics for; his depression and anxiety; his failure to take his prescribed medication for his depression and anxiety; his lack of sleep in 40 hours; and his emotional breakdowns throughout the day. Additionally, Dobbs notes that he had minimal contact with law enforcement prior to the day of the accident as he had no prior adult or juvenile record and had never been on probation or supervision. ¶74 police However, practices Dobbs's is failure to determinative. establish We any improper decline Dobbs's invitation to assess the voluntariness of his statements based solely on the his physical and mental condition as it would "effectively result in the establishment of a per se rule of involuntariness (and inadmissibility) 43 whenever an officer No. 2018AP319-CR questions a defendant who is suffering from serious pain and undergoing medical treatment at the time the questioning takes place." Clappes, 136 Wis. 2d at 242. We conclude that based upon the lack of proof of any improper police practices, Dobbs's statements were voluntary. IV. ¶75 CONCLUSION We conclude that the circuit court properly exercised its discretion when it excluded Dr. White's exposition testimony for a lack of fit with the facts of Dobbs's case. Additionally, although we determine that several of Dobbs's statements should have been suppressed because he was subject to custodial interrogation and not read the Miranda warnings, we conclude that the error was harmless. We further conclude that all of Dobbs's statements were voluntary. ¶76 By the Court.—The decision of the court of appeals is affirmed. 44 No. ¶77 ANNETTE KINGSLAND ZIEGLER, J. 2018AP319-CR.akz (concurring). I join the majority opinion's analyses and conclusions regarding the admissibility of Dr. White's expert testimony and voluntariness of Dobbs' statements to law enforcement. not join the majority's analysis or the But I do conclusions regarding Miranda1 and custodial interrogation for two reasons. First, I disagree with the majority's ultimate conclusion. subject to custodial interrogation at any Dobbs was not time prior receiving his Miranda warnings on the day in question. to Second, I am concerned that the majority's analysis, though it addresses the Fifth Amendment and Miranda, could seriously undermine Fourth Amendment law regarding Terry2 stops and investigatory detention. Accordingly, jurisprudence I write surrounding the separately to intersection clarify of the Terry investigatory detention and Miranda custodial interrogation. I respectfully concur. I. ¶78 MIRANDA AND THIS CASE The Fifth Amendment to the United States Constitution states that "[n]o person" "shall be compelled in any criminal case to be a witness against himself" or herself. section 8(1) protection. of the Wisconsin Constitution Article 1, affords the same State v. Bartelt, 2018 WI 16, ¶26, 379 Wis. 2d 588, 906 N.W.2d 684 (citing State v. Ward, 2009 WI 60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236). In Miranda 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Terry v. Ohio, 392 U.S. 1 (1968). 1 v. Arizona, the No. 2018AP319-CR.akz Supreme Court concluded that the Fifth Amendment requires law enforcement conducting Miranda to inform custodial warnings are suspects of their interrogations.3 384 required because rights U.S. "'[t]he prior 436 to (1966). circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of [the suspect.]'" ¶27 (quoting Miranda, 384 U.S. at 469). Bartelt, 379 Wis. 2d 588, Accordingly, Miranda is rooted in a concern that custodial interrogation can "compel[]" a suspect "to be a witness against himself" or herself. U.S. Const. amend. V. ¶79 In this case, law enforcement did not inform Dobbs of his Miranda rights until around 10:19 a.m., after he had already made a series of statements. narrow issue of whether This concurrence focuses on the Miranda required Dobbs' We summarized the content of Miranda suspects' relevant rights in Bartelt as follows: 3 pre-warning warnings and "[The suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda, 384 U.S. at 479. If the accused indicates that he or she wishes to remain silent, questioning must stop. If he or she requests counsel, questioning must stop until an attorney is present. Id. at 474. State v. Bartelt, 2018 WI 16, ¶27 n.6, 379 Wis. 2d 588, 906 N.W.2d 684. 2 No. statements to interrogation determine be suppressed.4 triggers whether Miranda Dobbs was Because only protections, both interrogation prior to 10:19 a.m. in 2018AP319-CR.akz the custody custodial court and must subject to On review, determinations of custody and interrogation involve a two-step process. Bartelt, 379 ¶9, Wis. 2d 588, Wis. 2d 271, factual and ¶9. We Miranda but v. from 2017 review them Wis. 2d 588, then apply and the WI the unless 379 custody benefit Harris, We uphold Bartelt, Wis. 2d 271, regarding State N.W.2d 663. findings erroneous. novo, 892 ¶25; 31, circuit they ¶25; interrogation analyses of to the court's are clearly Harris, constitutional the 374 374 principles facts courts de below. Bartelt, 379 Wis. 2d 588, ¶25; Harris, 374 Wis. 2d 271, ¶9. The parties do not dispute the circuit court's factual findings in this case. A. ¶80 Custody "The test to determine whether a person is in custody under Miranda is an objective test." Bartelt, 379 Wis. 2d 588, ¶31 (citing State v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523, 828 N.W.2d 552). We look to the "totality of the circumstances" to determine "whether there is a formal arrest or restraint on freedom arrest." of movement of a degree associated with a formal Id. (citing Lonkoski, 346 Wis. 2d 523, ¶27; California Dobbs does not challenge the sufficiency of law enforcement's Miranda warnings, once he heard them, or the validity of his waiver. Rather, he challenges the admissibility of his post-Miranda warning statements as involuntary only. I join the majority on the voluntariness issue, and so will not address it here. 4 3 No. 2018AP319-CR.akz v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam); and State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816 N.W.2d 270)). See also New York v. Quarles, 467 U.S. 649, 655 (1984) ("'[T]he ultimate inquiry is simply whether there is a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest[.]'" (quoting Beheler, 463 U.S. at 1125)). ¶81 under "We consider a variety of factors to determine whether the totality of the circumstances would feel at liberty to [leave]." ¶32. a reasonable person Bartelt, 379 Wis. 2d 588, Those factors include: "the defendant's freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint." Martin, 343 Wis. 2d 278, ¶35 (citing State v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648 N.W.2d 23). Regarding degree of restraint, "we consider: whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is restrained, whether the suspect is moved to another location, whether questioning took place in a police vehicle, and the number of officers involved." Bartelt, 379 Wis. 2d 588, ¶32 (citing Morgan, 254 Wis. 2d 602, ¶12). ¶82 But the restraint-on-freedom-of-movement test does not end the inquiry. Bartelt, 379 Wis. 2d 588, ¶33. Restraint on freedom of movement, i.e., constructive arrest, is a necessary, but not a sufficient condition to establish Miranda custody. Id. "If we determine that a suspect's freedom of movement" is restrained to a degree "such that a reasonable person would not feel free to leave, we must then consider whether 'the relevant 4 No. environment presents . . . inherently . . . .'" Id. (2012)). Only (quoting then Howes will v. coercive Fields, Miranda's 2018AP319-CR.akz 565 Fifth U.S. Amendment regarding compelled witness testimony be triggered. pressures 499, 509 concerns A person may not always be free to leave circumstances such as those present here, but that does not require a determination that such person is in custody. ¶83 In this case, Dobbs was receiving the Miranda warnings. that Dobbs was after 10:19 a.m. not subject to not in custody prior to The circuit court determined custodial interrogation until Similarly, the court of appeals concluded that Dobbs was detained, but not in custody. State v. Dobbs, No. 2018AP319-CR, unpublished slip op., ¶¶11-14 (Wis. Ct. App. May 2, 2019). I agree. Under the totality of the circumstances, Dobbs was not formally arrested or subject to a restraint on freedom of movement to a degree associated with formal arrest prior to receiving Wis. 2d 588, ¶31. the Miranda warnings. Bartelt, 379 The majority concludes otherwise only because it seemingly changes the Bartelt test for Miranda custody.5 It gives too much weight to particular factors at the expense of the totality of the circumstances, and ignores the final inquiry whether the environment included inherently coercive pressures. The majority also relies on the State's concession in this case that Dobbs was subject to custodial interrogation. See majority op., ¶55. But we are not bound by the State's concession. State v. Anderson, 2014 WI 93, ¶19, 357 Wis. 2d 337, 851 N.W.2d 760 ("[W]e are not bound by a party's concession of law." (citing Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712 (1997))). 5 5 No. ¶84 Regarding Dobbs' "freedom to 2018AP319-CR.akz leave," Martin, 343 Wis. 2d 278, ¶35, the majority notes that Officer Milton blocked Dobbs' vehicle, handcuffed him, and put him in the squad car. Majority op., ¶61. The majority also notes that, while at the hospital, Dobbs was guarded. Id. But during any traffic stop, the suspect is not permitted to drive away, whether the vehicle is blocked or not. enforcement to Additionally, it is not unusual for law place a suspect in a squad car while they investigate and control the scene or to guard a suspect. The majority determines that Dobbs was not free to leave under these circumstances. not free custody. to Id. leave, That may be true. that does not But even if a suspect is establish that he is in Not being free to leave, though a necessary condition to conclude a suspect is in custody, is not itself sufficient to conclude a suspect is in custody. See Quarles, 467 U.S. at 655 (describing the ultimate inquiry as "whether there is a 'formal arrest or restraint on freedom of associated with a formal arrest"). movement' of the degree If it was sufficient, then any person temporarily detained for an ordinary traffic stop would be in custody. While perhaps not actually leave," these people are not in Miranda custody. "free to See Berkemer v. McCarty, 468 U.S. 420, 436 (1984) ("Certainly few motorists would feel free . . . to leave the scene without being told they might do so."). that Dobbs' case unfolded in a of a traffic stop The record reflects manner similar investigation and detention incident to a traffic stop. to an Indeed, Officer Milton repeatedly told Dobbs that there was an ongoing 6 No. investigation. See majority op., ¶8. 2018AP319-CR.akz Dobbs may not have been actually "free to leave," but that does not mean that he was in custody. ¶85 Regarding the second factor, "the purpose, place, and length of the interrogation," Martin, 343 Wis. 2d 278, ¶35, the majority's analysis again distorts facts ordinarily associated with a routine traffic stop into Miranda concerns. The majority does not analyze the purpose of Officer Milton's questioning at all, but notes that it occurred intermittently over the course of three hours in the squad car and at the hospital. op., ¶¶62-63. general There are several problems with this. on-the-scene questioning is not the same Majority First, thing as interrogation and does not raise Miranda concerns to the same degree. Dobbs was not subjected to questioning of any significant length and the type of conversation that occurred did not amount to interrogation. Second, the place of Dobbs' questioning was not of particular concern. Questioning suspects in squad cars and hospitals, particularly incident to suspected OWI or traffic accident cases, is a common, and often necessary, law enforcement practice in order to control a scene or ensure the health and well-being of a suspect. Regarding the purpose of law enforcement's questions, Dobbs was asked who he was, where he was coming from, where he was going, how he got his injuries, and whether he had any other medical issues or took any medications. Majority op., ¶7. These types of questions are routine in traffic stops, traffic accidents, and suspected OWI cases. 7 No. ¶86 Regarding "the degree of 2018AP319-CR.akz restraint," Martin, 343 Wis. 2d 278, ¶35, the majority notes that Officer Milton held his service weapon, that there were other officers on the scene and at the hospital, and that Dobbs was frisked, handcuffed, and locked in the squad car. Majority op., ¶64. But again, during a routine traffic stop, a frisk or the presence of multiple officers is common in order to ensure officer safety. Importantly, there is nothing in the record to suggest that Officer Milton, though he had his hand on his service weapon, ever pointed it at Dobbs. Simply holding a service weapon, without pointing it at a suspect, is also appropriately related to officer safety. Nor does the fact that Dobbs was handcuffed pull the degree of restraint in this case into Miranda custody. Martin, 343 Wis. 2d 278, ¶34 ("We recognize that the use of handcuffs does not in all cases render a suspect in custody for Miranda purposes."). necessarily render Wis. 2d 278, ¶34 Even Dobbs n.23 as in a whole, Miranda ("[D]rawing these custody. weapons, facts did not Martin, 343 handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest for Miranda purposes." (quoting United States v. Leshuk, 65 F.3d 1105, 1109–10 (4th Cir. 1995))). 8 No. ¶87 2018AP319-CR.akz Accordingly, none of the Miranda custody factors favor a determination of custody in this case.6 restrained to a degree Dobbs was not formally arrested or associated with formal arrest. Because I so conclude, my custody analysis ends here. But, under Bartelt, since the majority concluded that Dobbs was restrained majority relevant to the should degree have continued environment pressures . . . .'" associated on with to formal consider arrest, "whether present[ed] . . . inherently Bartelt, Howes, 565 U.S. at 509.) 379 Wis. 2d 588, ¶33 the 'the coercive (quoting For the sake of completeness, I note that there was nothing inherently coercive or wrongful about law enforcement's conduct in this case. record to suggest otherwise. There is nothing in the Indeed, the majority notes the utter lack of wrongful or coercive conduct in the record in its This case is distinguishable from State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23. In that case, the court of appeals concluded that Morgan was in custody where, after police pointed their guns at Morgan, he tried to flee and was chased and caught by police, was frisked, handcuffed and placed in a squad car. Id., ¶¶3-4, 17. Dobbs never had a weapon pointed at him and never tried to evade or escape law enforcement. Under the totality of the circumstances, it is clear that Dobbs was handcuffed and in the back of the squad car for a very different reason from Morgan, and law enforcement used significantly less force against Dobbs than Morgan. 6 Rather, this case is more analogous to State v. Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998). In that case, Gruen was not in custody where, after a traffic accident, he was stopped near the scene, frisked, placed in the back of a police van, and questioned by law enforcement. Id. at 586, 597-98. Just like Gruen, Dobbs did not have a weapon pointed at him, but was stopped near the scene of a traffic accident, frisked, detained in a police vehicle, and questioned. If Gruen was not in custody, then Dobbs was not either. 9 No. voluntariness analysis. of the relevant 2018AP319-CR.akz Majority op., ¶¶73-74. environment further Consideration counsels against a determination of Miranda custody in this case. B. ¶88 For purposes Interrogation of Miranda, interrogation express questioning or its functional equivalent. Wis. 2d 271, "only ¶¶16-17, those 19-22. questions admissions.'" "Express 'designed includes Harris, 374 questioning" to elicit includes incriminatory Id., ¶16 (quoting Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14 (1990)). "It is the nature of the information the question is trying to reach, therefore, that determines whether" the question triggers Miranda. Id., ¶17. If the desired "information has no potential to incriminate the suspect, the question requires no Miranda warnings." Id. (citing Doe v. United States, 487 U.S. 201, 211 n.10 (1988) ("In order to be privileged, it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance.")). ¶89 Miranda can also be triggered equivalent' of an interrogation." by the "'functional Harris, 374 Wis. 2d 271, ¶19 (citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). Functional "techniques equivalence of is aimed at capturing persuasion that, in a law custodial enforcement setting, can create the same potential for self-incrimination even in the absence of an express question." Id. The functional equivalents of interrogation include "'any words or actions on the part of the police (other than those normally attendant to 10 No. 2018AP319-CR.akz arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" Id. (quoting Functional Innis, 446 equivalence enforcement's U.S. is underlying an at 301 (footnotes objective subjective inquiry; intent subjective understanding is dispositive. ¶90 nor omitted)). neither the law suspect's Id., ¶¶20, 22. Rather, we review law enforcement's actions from the perspective of a "reasonable third-person observer and inquir[e] into how such a person would expect the suspect to react to the officer's words and actions." Harris, 374 Wis. 2d 271, ¶22. We impute to the third-person observer "'[a]ny knowledge the police may have defendant had to concerning a the particular unusual form of (quoting Innis, 446 U.S. at 302 n.8). susceptibility persuasion.'" of Id., a ¶21 The test is: "[I]f an objective observer (with the same knowledge of the suspect as the police officer) could, on the sole basis of hearing the officer's remarks or observing the officer's conduct, conclude that the officer's conduct or words would be likely to elicit an incriminating response, that is, could reasonably have had the force of a question on the suspect, then the conduct or words would constitute interrogation." Id., ¶22 (quoting State v. Cunningham, 144 Wis. 2d 272, 278-79, 423 N.W.2d 862 (1988)). ¶91 The majority interrogation. relies entirely concludes that Majority op., ¶67. on the State's Officer Milton interrogated Dobbs. Dobbs was subject to But, in so concluding, it ill-advised concession that Because I conclude Dobbs was not in custody, I need not analyze whether he was interrogated; regardless, the Miranda protections 11 are not triggered. See No. 2018AP319-CR.akz Innis, 446 U.S. at 300-01 ("[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." (Emphasis added.)). But I have reason to doubt the merit of the State's concession in this case. ¶92 First, I note——and the majority seems to agree——that at least some of Dobbs' statements were spontaneous and not elicited in any way. See majority op., ¶¶15-16, 49, 69. Second, I am unpersuaded that Officer Milton's questions were express questions designed to elicit incriminating admissions. As discussed investigatory above, Officer questions Milton's incident to questions ordinary traffic accidents, or suspected OWI cases. were routine traffic stops, General, on-the- scene questioning of this sort is not interrogation. See United States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988) ("[T]he solicitation of information concerning a person's identity and background does not amount to custodial interrogation prohibited by Miranda . . . ."). Third, I am equally unpersuaded that this case presents any functional equivalent concerns. I do not readily see a basis for a reasonable third-party observer to conclude that any officer's words or conduct "'could reasonably have had the force of a question on'" Dobbs. Harris, 374 Wis. 2d 271, ¶22 (quoting Cunningham, 144 Wis. 2d at 279). ¶93 Thus, conclusion; Dobbs under Miranda. end there. I disagree was not with subject the to majority's custodial ultimate interrogation But my disagreement with the majority does not I am also concerned that its analysis conflates the 12 No. routine investigatory custody and detention Miranda Fifth of Dobbs Amendment in 2018AP319-CR.akz this case violations, with thereby undermining our Fourth Amendment jurisprudence. II. ¶94 THE INTERSECTION OF MIRANDA AND TERRY. The Fourth and Fifth Amendments to the United States Constitution protect different interests. As discussed above, the Fifth Amendment and Miranda protect the right to be free from compulsion to incriminate oneself. U.S. Const. amend V. Relevant here, the test for Miranda custody is whether, under the "totality of the circumstances," viewed objectively, "there is a formal arrest or restraint on freedom of movement of a degree associated Wis. 2d 588, factors, with ¶31. a formal Custody including: "the is arrest." analyzed defendant's in Bartelt, light freedom to of 379 various leave; the purpose, place, and length of the interrogation; and the degree of restraint." Martin, 343 Wis. 2d 278, ¶35 (citing Morgan, 254 Wis. 2d 602, ¶12). ¶95 In contrast, the Fourth Amendment protects the right to be free from unreasonable searches and seizures. amend. IV.; see also Wis. Const. art. 1, U.S. Const. § 11. If law enforcement conducts a traffic stop or "temporary investigative stop," that is "a Amendment . . . ." Wis. 2d 138, 864 seizure within the meaning of the Fourth State v. Blatterman, 2015 WI 46, ¶17, 362 N.W.2d 26. To comply with the Fourth Amendment, the stop must be reasonable at its inception and in its duration. U.S. 1, a Id., ¶¶19-20. police officer "Pursuant to Terry v. Ohio, 392 may, 13 under certain circumstances, temporarily detain a person for purposes No. 2018AP319-CR.akz of investigating possible criminal behavior even though there is not probable cause to make an arrest." 22; State v. (1972). Chambers, "The Id., ¶18 (citing Terry, 392 U.S. at 55 Wisconsin Wis. 2d 289, 294, 198 Legislature codified N.W.2d 377 the Terry constitutional standard in Wis. Stat. § 968.24." Id. here, investigatory "an officer may conduct a temporary Relevant detention when 'the officer reasonably suspects that [a] person is committing . . . a crime.' § 968.24." Id., ¶19. Accordingly, an officer may conduct an investigatory detention so long as he has reasonable suspicion detention is reasonable in duration. ¶96 What starts into an arrest. as an to do so and the See id., ¶¶19-20. investigatory detention can turn If and when it does, the Fourth Amendment requires that the arrest be supported by probable cause. Blatterman, 362 Wis. 2d 138, ¶29. See The test whether a suspect is arrested is "whether a 'reasonable person in the defendant's position would have considered himself or herself to be "in custody," given the degree circumstances.'" Id., Wis. 2d 437, 475 447, ¶30 of restraint (quoting N.W.2d 148 State (1991), v. under the Swanson, 164 abrogated on other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277)). The similarities between Fourth Amendment arrest analysis Fifth and apparent. This Amendment case tees custody up analysis questions are readily surrounding the intersection between the Fifth Amendment and Miranda custodial interrogation on one hand, and 14 the Fourth Amendment, Terry No. 2018AP319-CR.akz investigatory detentions, and arrests on the other. investigatory detention can turn into an A Terry arrest. Miranda custody occurs when a suspect is under arrest or restrained to a degree associated investigatory interrogation? ¶97 with formal detention arrest. turn So into can Miranda a Terry custodial If so, when and how? In Morgan the court of appeals said that Miranda and Terry are two different analyses designed to protect different constitutional rights. Morgan, 254 Wis. 2d 602, ¶¶13-16. Morgan was not the first time that Wisconsin courts noted the intersection of Miranda and Terry. See also, State v. Griffith, 2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72; Swanson, 164 Wis. 2d at 447-49; Gruen, 218 Wis. 2d at 593-94; and State v. Pounds, 176 Wis. 2d 315, 322, 500 N.W.2d 373 (Ct. App. 1993). In Griffith, a Fourth Amendment traffic stop case, we stated: The United States Supreme Court has held that persons temporarily detained in ordinary traffic stops are not "in custody" and therefore not subject to the rule in [Miranda]. Berkemer v. McCarty, 468 U.S. 436, 440 (1966); see also [Swanson, 164 Wis. 2d at 449]. However, the Court made clear that if a detained motorist is treated in such a manner that he or she is rendered "in custody" for practical purposes, Miranda protections are triggered. Berkemer, 468 U.S. at 440. Griffith, 236 Wis. 2d 48, ¶69 n.14. ¶98 In this case, the majority appears to draw a bright line between Terry Fourth Amendment jurisprudence and Miranda Fifth Amendment jurisprudence. See majority op., ¶57 ("We uphold Morgan and clarify that the Fourth Amendment and Fifth Amendment protect different interests and involve different inquiries."); see also id., ¶60 ("We therefore recognize the 15 No. 2018AP319-CR.akz distinction between an analysis of a violation of the Fourth and Fifth Amendment as aptly described in Morgan, 254 Wis. 2d 602, ¶¶13-16."). In analysis this in doing so, case, the majority ignores an oversimplifies important issue the in constitutional law, and potentially undermines Fourth Amendment law as an expense of its development of Fifth Amendment law. ¶99 The extent to which a stop can be reasonable under Terry for Fourth Amendment purposes and, nonetheless, render the suspect in custody under Miranda for Fifth Amendment purposes is an issue subject to a federal circuit court split. Seventh, Ninth, and Tenth Circuits inquiries are entirely distinct. conclude The Second, that the two See United States v. Ali, 68 F.3d 1468, 1473 (2d Cir. 1995) (stating that whether a stop was permissible under Terry is "irrelevant" to Miranda analysis, because "Terry is an exception to the Fourth Amendment probablecause requirement, against 1088, not to self-incrimination"); 1096-97 (7th Cir. the Fifth United 1993) Amendment States (noting the v. protections Smith, "'vast 3 F.3d difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment'"; stating that its "inquiry into the circumstances of temporary detention for a Fifth and Sixth Amendment Miranda analysis requires a different focus than that for a Fourth Amendment Terry stop"); United States v. Kim, 292 F.3d 969, 976 (9th Cir. 2002) (stating that "whether an individual detained during the execution of a search warrant has been unreasonably seized for Fourth Amendment purposes and whether that individual is 'in custody' for Miranda 16 No. purposes are two different issues"); and 2018AP319-CR.akz United States v. Perdue, 8 F.3d 1455, 1463–64 (10th Cir. 1993) (noting that "a suspect can be placed in police 'custody' for purposes of Miranda before he has been 'arrested' in the Fourth Amendment sense"; holding that a gunpoint stop permissible under the Fourth Amendment "created the 'custodial' situation envisioned by Miranda and its progeny"). ¶100 The First, Fourth, and Eighth Circuits conclude that the two inquiries are not so distinct. See United States v. Trueber, 238 F.3d 79, 92 (1st Cir. 2001) (stating, "As a general rule, Terry stops do not implicate the requirements of Miranda because Terry stops, though inherently somewhat coercive, do not usually involve atmosphere quotations which the type of police necessitates omitted); United dominated Miranda States v. or compelling warnings") (internal Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995) (discussing Terry law in the course of its Miranda analysis and stating, "From these standards, we have concluded that drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest for Miranda purposes"); and United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir. 2003)(rejecting the defendant's "broad contention that a person is in custody for Miranda purposes whenever a reasonable person would not feel free to leave"); see also id. ("One is not free to leave a Terry stop until the completion of a reasonably brief investigation, which may include limited questioning. 17 But most Terry stops do No. not trigger the detainee's Miranda 2018AP319-CR.akz rights."). See also Katherine M. Swift, Drawing a Line Between Terry and Miranda: The Degree and Duration of Restraint, 73 U. Chi. L. Rev. 1075, 1084-88 (summarizing this split of authority). ¶101 To the majority, the issue in this case is whether Dobbs was in custody under Miranda. To me, the actual issue in this case is whether law enforcement's investigatory detention of Dobbs under Terry turned into custody Fourth and Fifth Amendment purposes. The totality of the under Miranda for I answer no, it did not. circumstances, viewed objectively, demonstrate that Dobbs was subject to a reasonable investigatory detention, but not in Miranda and Terry is Miranda custody. at the heart of majority fails to meaningfully address it. The intersection of this case. But the I am concerned that the majority's analysis of Fifth Amendment Miranda law could seriously undermine Fourth Amendment Terry law, and so I cannot join it. III. CONCLUSION ¶102 I join the majority opinion's analyses and conclusions regarding the admissibility of Dr. White's expert testimony and the voluntariness of Dobbs' statements to law enforcement. But I do not join the majority's analysis or conclusions regarding Miranda and custodial interrogation for two reasons. disagree with the majority's ultimate conclusion. subject to custodial interrogation at any First, I Dobbs was not time receiving his Miranda warnings on the day in question. prior to Second, I am concerned that the majority's analysis, though it addresses 18 No. the Fifth Fourth Amendment Amendment detention. jurisprudence law and Miranda, regarding Accordingly, I surrounding could Terry write the 2018AP319-CR.akz seriously stops and separately to intersection undermine investigatory clarify of the Terry investigatory detention and Miranda custodial interrogation. ¶103 For the foregoing reasons, I respectfully concur. ¶104 I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK and Justice BRIAN HAGEDORN join this opinion. 19 No. ¶105 DANIEL KELLY, J. (concurring). 2018AP319-CR.dk There reasons people grow frustrated with the law. are many It's language is too arcane, it's written at such length that no normal person can reasonably hope to comprehend even a small part of its content, it spreads like a crazed spider web across innumerable sections, subsections, paragraphs, and parts, it changes frequently it's impossible to stay abreast of it, etc. so But for those who actually make an effort to discover what the written law requires, perhaps one of its most maddening features is that, apparently, it sometimes doesn't mean what it so plainly says. Or at least that's sometimes the case once we get our hands on it, as we did today with Wis. Stat. § 907.02(1). tremors will spread through our treatment of this evidentiary rule. conclusion will alienate the republic because of No our But the way we reached our people from their law just a smidgen more, and will further encourage the perception that the law cannot be understood without the priestly class of lawyers and judges revealing their gnosis to those to whom the law actually belongs.1 The advent of a written code of law is one of the most significant developments in the relationship between governors and the governed. Some of the key attributes of a written code include the following: 1 [I]t was important that the laws be stated in the vernacular, not Latin, and be phrased in clear and ordinary language, so that citizens could consult the code and perfectly understand their rights and obligations, without having to go to lawyers and judges. The codes needed to be organized logically so that people could readily find the relevant laws. And the provisions ought to be short, so that people could more easily remember them. 1 No. 2018AP319-CR.dk ¶106 Today, we made Wis. Stat. § 907.02(1) say something that no reasonably capable English-speaker would understand it to say. the Our task was to determine whether the 2011 addition of Daubert2 testimony standard changed the witness testimony. answer. for standard admission for the of expert admission witness of expert Just to state the question suggests the The text of the statute confirms the answer cannot be anything other than "yes." I'll the set it out in full It's not a lengthy provision, so with the text added by the 2011 "Daubert" amendment underlined for the sake of clarity: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. 2011 Wis. Act 2, § 34m (emphasis added). Most of the preamble in this provision addresses whether expert testimony would be helpful to the jury and whether the proposed witness qualifies as an expert. granting clause, The part which at issue provides that today an is the expert permission witness "may testify thereto [that is, his area of expertise] in the form of an opinion or otherwise, if" the witness satisfies the conditions that follow. Peter Tiersma, The Rule of Text: Is It Possible to Govern Using (Only) Statutes?, 6 NYU J.L. & Liberty 260, 270–71 (2011). 2 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 2 No. 2018AP319-CR.dk ¶107 I pause at this spot in the statute because this is where the majority discovers some gnosis not accessible through the words on the page. Ordinary folk like me see the "if" and conclude that what precedes it is contingent on what follows.3 Thus, I understand this language to mean that the expert may testify "in the form of an opinion or otherwise" but only if he can meet the conditions following the "if."4 The court, however, acting on a plane of understanding to which I apparently do not have access, says that only testimony in the form of an opinion is subject "otherwise" to the category, listed for conditions. some reason, Testimony is not. in The the court dedicates the bulk of its opinion on this subject to a detailed discussion of testimony in the "otherwise" category——its type, The Oxford English Dictionary defines "if" as "[i]ntroducing a clause of condition or supposition" and as meaning "[o]n condition that; given or granted that; in (the) case that; supposing that; on the supposition that." If, The Oxford English Dictionary (definition A. I. (conjunction)). Merriam-Webster similarly defines "if" as meaning "in the event that," "allowing that," "on the assumption that," and "on condition that." See If, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/if. 3 We actually have a requirement that we read statutory language the way everyone else does, with a narrow exception for technical meanings and special definitions. "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We give that language "its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id., ¶45. There are no technical or specially-defined words involved in the statute we are considering today, so we should read it just like everyone else. 4 3 No. 2018AP319-CR.dk its value, and our treatment of it prior to the 2011 Daubert amendment. but I I have no quibble with this historical recitation, can't "otherwise" figure such out that how it testimony in separates the "opinion" former from category is subject to the statute's Daubert conditions while testimony in the latter is not. The actual words on the page flat-out contradict the court inasmuch as they do not distinguish between "opinion" expert testimony "may and testify otherwise, if . . . ." "otherwise" thereto in the testimony. form of They an say an opinion or In ordinary English, this means the "if" applies with just as much force to "otherwise" as it does to "opinion."5 Part of the problem might be the court's apparent understanding that an expert who applies his principles and methods to the facts of a case must necessarily be offering an opinion. It says "[e]ven if Dr. White had simply been asked whether any of the factors he described in his exposition testimony related to Dobbs's case, his response would be offering his view about whether his exposition testimony relates to the particular facts in Dobbs's case." Majority op., ¶36 n.18. The court does not explain why this is the only way Dr. White could have been asked to connect his principles and methods to the facts of this case, nor does it provide any authority for the proposition. 5 4 No. ¶108 Although understanding of I'm Wis. highlighting Stat. the § 907.02(1), 2018AP319-CR.dk court's the gnostic majority isn't exactly hiding it, as a comparison between its framing of the question and its answer makes plain. agree, that reliability practice the issue us standard . . . altered of allowing Majority op., ¶35. glossary: before expert The majority says, and I is "[w]hether Wisconsin's exposition the Daubert long-standing testimony . . . ." Before I get to the court's answer, a short In this framing, "Daubert reliability standard" means the requirements following the "if" in § 907.02(1), including the requirement that the witness "applied the principles and methods reliably "exposition "otherwise" conclude expert to the testimony" category. that witness Wis. to facts means And Stat. testify of the case"; testimony now the the the term included in the court's § 907.02(1) in and answer: continues form of an to "[W]e permit opinion an 'or It's not hard to imagine exposition testimony that the expert ties to the facts of the case without expressing an opinion. Here, after providing his exposition about false confessions, Dr. White could have been asked whether he examined Mr. Dobbs, and what the observation or examination comprised. And he could have been asked whether, pursuant to this examination, he observed any of the factors he described in his exposition as potentially disposing a person to confess falsely. So long as Dr. White does not take the ultimate step of saying whether he believed the presence of those pre-disposing factors meant that Mr. Dobbs had confessed falsely, he would not have rendered an opinion. But he would have applied his principles and methods to the facts of the case. In fact, this is exactly the type of connection the court describes as "fitness." So it simply is not true that all expert testimony that the witness ties to the facts of the case is necessarily opinion testimony. 5 No. 2018AP319-CR.dk otherwise,' including exposition testimony on general principles without explicitly applying those principles to, or even having knowledge of, the specific facts of the case." ¶42. Majority op., So, although the words on the page say the legislature made the admission of "otherwise" testimony contingent on the expert having "applied the principles and methods reliably to the facts of the case," we know——with our special knowing——that this actually means the opposite, that the expert does not need to have "applied the principles and methods reliably to the facts of the case." And so today we reveal to the bench, bar, and public that our special insight allowed us to see that the Daubert reliability standard of § 907.02(1) applies to only one of the listed categories, even though the actual text says it applies to both.6 ¶109 But discerned that that the does not existing end words our do revelation. not mean what Having they so obviously say, we further discerned that Wis. Stat. § 907.02(1) contains a condition that is not actually there. The court says that [w]hen expert testimony is proffered in the form of an exposition on general principles, the circuit court, The majority cites other courts that have experienced similar insight, as well as the Advisory Committee Notes to Federal Rule of Evidence 702 (the federal analog to our expert witness rule). The court's apparent goal is to create a sense of authority out of nothing more than a multiplicity of sources because none of the citations lend any additional explanatory power to the court's gnostic insights. If other sources explain why certain language doesn't actually mean what it appears to say, I will be an attentive student. But a sea of others simply ignoring the text of the law means nothing to me. 6 6 No. 2018AP319-CR.dk as gatekeeper, must consider the following four factors: (1) whether the expert is qualified;[7] (2) whether the testimony will address a subject matter on which the factfinder can be assisted by an expert;[8] (3) whether the testimony is reliable;[9] and (4) whether the testimony will "fit" the facts of the case.[10] Majority op., ¶43. From the footnotes I attached to each of the elements in this quote, it is easy to see that one of them is not like the others. Elements one through three each reiterates a requirement contained in § 907.02(1). has no counterpart in the statute and Element four, however, is instead a purely judicial creation. ¶110 That we would add a condition not already present in the statute is interesting enough. is why the court grafted the But what I find fascinating condition onto the statute. "Establishing the fit of exposition testimony is particularly important," the court says, "because, unlike opinion testimony, exposition testimony does not in and of itself explicitly connect the witness's expertise to the particular facts of the This element echoes the statute's requirement that the witness is "qualified as an expert by knowledge, skill, experience, training, or education[.]" Wis. Stat. § 907.02(1). 7 This is a restatement of the statutory requirement that expert testimony is admissible only "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]" Wis. Stat. § 907.02(1). 8 This reflects one of the Daubert reliability standards, that is, that "the testimony is the product of reliable principles and methods." Wis. Stat. § 907.02(1). 9 This § 907.02(1). 10 element has no counterpart 7 in Wis. Stat. No. case." Majority op., ¶44. Well, yes. But 2018AP319-CR.dk the explicit connection is absent only because our gnosis revealed that the statutory requirement that "the witness has applied the principles and methods reliably to the facts of the case" does not apply to exposition obviously says it does. testimony, even though the text So now we are trying to patch a hole of our own making. ¶111 It gets better. The "fitness" patch the court engineered to cover the hole it created is uncannily similar to the condition it excised. Whether expert testimony "fits" a case turns on whether it is "sufficiently tied to the facts of the case" such that "it will aid the jury in resolving a factual dispute." Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (1985)). "[E]xpert testimony is helpful to the jury," or fits, "if it concerns a matter beyond the understanding of the average person, assists the jury in understanding facts at issue, or puts the facts in context." Majority op., ¶44 (emphasis added). There's a reason for the similarity, and the court's Daubert cite should have tipped it off to the irony of what it is doing here. which itself the majority the relies inspiration for for The Daubert quote on its "fitness" the Wis. requirement Stat. is § 907.02(1) requirement that the witness apply his testimony to the facts of the case. So let's take stock of where we are. Our legislature wrote into § 907.02(1) the Daubert requirement that the expert connect his testimony to the facts of the case, we took that condition out and replaced it with a patch based on Daubert's "fitness" concept, the very concept that inspired the condition we removed, the removal of which created the need for the patch. 8 No. 2018AP319-CR.dk This is dizzying and disorienting even for those trained in the law. For everyone else, it just makes the law a hopeless jumble. ¶112 One would hope that the end product of the court's superior insight into the true meaning behind the words of Wis. Stat. § 907.02(1) didn't. would yield something profound. But it In fact, it produced just a few minor alterations to the condition it removed. Whereas the statute requires that the witness apply his testimony to the facts so that there is an actual testimonial connection between the two, the court's "fitness" requirement downgrades the connection from explicit to implicit, and requires that the court make the connection as part of its gate-keeping function rather witness to make it as part of his testimony. cake is worth the candle. than requiring the I don't think that And it's most definitely not worth the statute-rending process necessary to get there. ¶113 Having said all this, I agree with the court's conclusion that the circuit court did not err in not admitting Dr. White's testimony. As everyone agrees, he not only did not apply his testimony to the facts of this case, he did not even know what they were. Consequently, he did not satisfy the Wis. Stat. § 907.02(1) condition that the witness must "appl[y] the principles and methods reliably to the facts of the case." Therefore, I join the court's opinion except with respect to Part III.A. ¶114 I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this concurrence. 9 No. 1 2018AP319-CR.dk
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