State v. Lemoine

345 Wis.2d 171

827 N.W.2d 589

2013 WI 5

STATE of Wisconsin, Plaintiff–Respondent,

v.Dennis D. LEMOINE, Defendant–Appellant–Petitioner.

No. 2010AP2597–CR.

Supreme Court of Wisconsin.

Argued Oct. 4, 2012.

Decided Jan. 8, 2013.

For the defendant-appellant-petitioner, there were briefs filed by Katie R. York, assistant state public defenders, and oral argument by Katie R. York.

For the plaintiff-respondent, the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

N. PATRICK CROOKS, J.

[345 Wis.2d 175]¶ 1 This is a review of an unpublished decision of the court of appeals ¹ that affirmed the judgment of the circuit court. This case involves statements made during what was undisputedly a non-custodial interrogation of defendant Dennis D. Lemoine. The issue before this court is whether the statements were involuntary. If the statements were involuntary, the next appropriate step is to determine whether the state has proved beyond a reasonable doubt that the admission of the unconstitutionally obtained statements did not impel Lemoine to testify in order to overcome their impact at trial.²

¶ 2 Lemoine challenged the statements prior to trial on the grounds that they were involuntary. The circuit court for Sauk County, the Honorable Guy Reynolds presiding, reviewed a video recording of the interrogation, found that Lemoine's statements were voluntary under the totality of the circumstances, and allowed admission of the statements at trial. Lemoine then testified at trial and was convicted. He appealed on the grounds that the statements were involuntary and were thus improperly admitted. The court of appeals assumed without deciding that the statements were involuntary but held that in light of the other evidence produced at trial, including the defendant's testimony, the admission of the statements was harmless error. The court of appeals denied Lemoine's motion for reconsideration.

[345 Wis.2d 176]¶ 3 We hold that the admission of Lemoine's statements at trial was not error because, under the totality of the circumstances, the statements were voluntary. The well-established test for voluntariness balances the personal characteristics of the defendant against pressures imposed by law enforcement officers to determine if the pressures exceeded the defendant's ability to resist. State v. Clappes, 136 Wis.2d 222, 236, 401 N.W.2d 759 (1987). Nothing about Lemoine made him particularly vulnerable; he was 22 years old, had earned a high school equivalency diploma (HSED), held a job as a truck driver, was familiar with one of the interviewing officers, and was assertive enough to voice his discomfort with a female officer's presence, a concern the police accommodated. The interrogator overstated the evidence against Lemoine and provided Lemoine with incentives to give information, including a promise that Lemoine would not be jailed for the night if he told the “true story.” When balanced, however, against the characteristics of Lemoine, the tactics used by the police in the 75 to 80 minute interrogation did not rise to the level of being coercive. Therefore, it was not error for the circuit court to admit the voluntary statements at trial. Accordingly, though our analysis differs from that of the court of appeals, we affirm its decision.

I. BACKGROUND ³

¶ 4 On the morning of April 23, 2007, Lemoine visited a friend at his friend's house. Lemoine's friend's five-year-old daughter, Caitlin B., returned home from Head Start and wanted to jump on the trampoline in the backyard. Lemoine offered to go with her and watch her, and he sat on the steps on the back porch while watching Caitlin. At some point, Caitlin came to Lemoine and sat on his lap.

¶ 5 Four days later, Caitlin told her parents that while she was sitting on Lemoine's lap on April 23 he “pulled her dress up and pulled down her underwear and put his finger in her pee-pee.” Caitlin's mother reported the incident to the Sauk County Sheriff's Department, and on April 29, Caitlin underwent a sexual assault exam at Meriter Hospital in Madison. The next day, Detective Stacy McClure interviewed Caitlin. McClure asked Caitlin repeatedly if she had been given a “bad touch,” and initially, Caitlin did not implicate Lemoine. After a ten-minute break during which Caitlin had contact with her mother, Caitlin told McClure that Lemoine pulled down her underwear and touched her “pee-pee.”

¶ 6 Later that day, McClure called Lemoine and requested that he come to the sheriff's department. Lemoine arrived about an hour later. Initially, McClure interviewed Lemoine alone; she was later joined by Lieutenant Michael Stoddard. The interview, which lasted 75 to 80 minutes, took place in a small, windowless office at the sheriff's department and was recorded. No one advised Lemoine of his Miranda⁴ rights or told him he was free to leave. At one point, when Lemoine's phone made a sound, Stoddard told Lemoine he could answer it.

¶ 7 No one argues that coercive conduct took place during the first 45 minutes of the interview. During that time, Lemoine stated that he had stopped by Caitlin's parents' house on the day in question and that he watched Caitlin bounce on her trampoline briefly until he walked away “because it was boring.” Lemoine repeatedly denied that Caitlin sat on his lap or was alone with him. When told that Caitlin claimed to have sat on his lap, Lemoine said that Caitlin “doesn't tell the truth” and was a troubled child so he “avoid[s] her at all costs.” He further said that Caitlin had hit him in the back of the head with a chair once and had “smacked” him with wrenches.

¶ 8 After a break during which McClure briefly left the room, Stoddard joined the interview. Stoddard told Lemoine that he did not believe his story and that, if he would “come clean,” the officers could help him out “by not making a big production in the [newspaper].” Stoddard also told Lemoine that Caitlin had just “gone through some very lengthy medical procedures” and that they were awaiting the results. Stoddard said, “I don't think it's going to look good for you when” the test results come in. Lemoine asked how many years of incarceration he would face if he admitted to the allegations, to which Stoddard replied that he did not know, but that the crime was a felony. Lemoine expressed concern that he would be unable to continue working as a truck driver with a felony conviction, but Stoddard assured him that a felony conviction would not prevent him from driving a truck.

¶ 9 Stoddard described three different scenarios: “We can arrest you and put you in jail, and you will go to court tomorrow. We give you a citation and send you down the road. Or we can do nothing and wait until we've got everything.” Lemoine requested a citation to which Stoddard replied, “No. I'm not going to give you the choice.” At that time, Lemoine voiced his discomfort with having McClure present, and she left the room. Lemoine stated, “I'm comfortable with you.” Later, Lemoine asked what a felony and citation were, and Stoddard explained that with a citation, Lemoine could ask for time to get his affairs in order and come back to make an initial court appearance at a later date, whereupon he would enter a plea and say “I'm not guilty of this.”

¶ 10 Stoddard also promised Lemoine that if Lemoine gave the “true story ... today” he would not “spend the night in jail” and that this would “give you time to call an attorney ... [o]therwise, you know, we can lock you up, if we choose to do so.” Stoddard explained that in jail Lemoine would not “be able to make any phone calls or anything.” Stoddard then encouraged Lemoine to talk to the district attorney so that “it doesn't end up in court” or “in the public forum.” Lemoine said that he would admit to the allegations if Stoddard would promise in writing that he would not be taken to jail.

¶ 11 Lemoine then explained that when he was sitting on the back porch, Caitlin jumped onto his lap and that as he picked her up from his lap he placed his hand on her private area and rubbed the area over the underwear for “10, 15 seconds.” After repeatedly denying to Stoddard that there was skin-to-skin contact, he eventually admitted that there was. Lemoine characterized the incident as “the stupidest thing I've ever done” and said that he “almost wrecked” his motorcycle on the way to the police station because he knew why he was being called in. Later, during a break in which he was alone in the interview room, he said to himself, “I can't believe I did this.” Lemoine was issued a citation and released. He was subsequently charged with first degree sexual assault of a child in violation of Wis. Stat. § 948.02(1)(e). ⁵

[345 Wis.2d 180]¶ 12 Prior to trial, Lemoine moved to suppress the statements as coerced and therefore inadmissible.⁶ The circuit court reviewed the video and the transcript of the interview, received briefing and decided at a hearing that the statements were voluntary.⁷ Portions of the video were admitted at trial, and Lemoine testified. A jury found Lemoine guilty after a four-day trial.

¶ 13 Lemoine appealed the conviction on the grounds that his statements were involuntary and therefore wrongfully admitted at trial. The court of appeals affirmed the conviction by assuming without deciding that the statements were involuntary and then finding the admission of the statements to be harmless error. Lemoine moved for reconsideration for failure to conduct a Harrison/ Anson analysis, and the court of appeals denied it, stating, “we have already addressed and rejected Lemoine's Harrison argument by holding that an error was harmless. Nothing in the materials submitted causes us to reconsider our decision.” State v. Lemoine, No. 2010AP2597, unpublished slip op. (Wis.Ct.App. Oct. 13, 2011). Lemoine petitioned this court for review, which we granted.

II. STANDARD OF REVIEW

¶ 14 This case presents an...