State v. Rejholec

398 Wis.2d 729

963 N.W.2d 121

2021 WI App 45

STATE of Wisconsin, Plaintiff-Respondent,

v.Daniel J. REJHOLEC, Defendant-Appellant.

Appeal No. 2020AP56-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: January 28, 2021

Opinion Filed: June 9, 2021

On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph N. Ehmann, regional attorney manager, office of the state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sara L. Shaeffer, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Reilly, P.J., Gundrum and Davis, JJ.

REILLY, P.J.

¶1 Daniel J. Rejholec was informed of and waived his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to his custodial interrogation. Rejholec repeatedly denied the accusations of his interrogator for the first half of his interrogation. One hour and seven minutes into the interrogation, the interrogator told Rejholec that he would be unable to testify at trial if he obtained a lawyer:

"You're not going to get a chance to tell your story. So the jury is never going to hear your side of the story." The interrogator repeated this misrepresentation a few minutes later, telling Rejholec, "I'm trying to give you an opportunity to tell your side of the story before it's too late to be able to do that." Rejholec thereafter gave incriminating statements.

¶2 Rejholec moved to suppress his statements on both Miranda and State ex rel. Goodchild v. Burke , 27 Wis. 2d 244, 133 N.W.2d 753 (1965), grounds. An accused's rights during a custodial interrogation can be violated in one of two ways: (1) the government fails to give or inadequately informs an accused of the warnings and advisements required by Miranda before or during a custodial interrogation, and the accused fails to waive his or her rights (a Miranda waiver challenge); or (2) the government utilizes improper pressures against the accused, causing his or her statements to be involuntary (a Goodchild statement challenge). See State v. Santiago , 206 Wis. 2d 3, 12, 18, 556 N.W.2d 687 (1996) ; State v. Jiles , 2003 WI 66, ¶¶25-26, 262 Wis. 2d 457, 663 N.W.2d 798. The circuit court found Rejholec's statements voluntary but did not address his waiver.

¶3 Rejholec appeals from his judgment of conviction for repeated sexual assault of the same child, pursuant to WIS. STAT. § 948.025(1)(e) (2019-20),¹ and from the circuit court's order denying his motion for postconviction relief. We reverse. We agree that Rejholec's statement ( Goodchild challenge) was voluntary, but we conclude that Rejholec's waiver ( Miranda challenge) became invalid when his interrogator misrepresented his right to silence, his right to counsel, and his right to testify at trial. Accordingly, we remand with directions that the circuit court grant Rejholec's suppression motion.

¶4 We begin with a brief statement of facts, relate the pertinent portions of Rejholec's custodial interrogation and suppression hearing, set forth our standard of review, address interrogation law, and analyze Rejholec's Goodchild and Miranda challenges.

Facts

¶5 Rejholec was arrested on probable cause of sexually assaulting the fourteen-year-old daughter of his girlfriend. He was taken into custody and interrogated by Sheboygan Police Detective Eric Edson. The relevant facts for this appeal are all found within the video recording of the interrogation and will be related below. Rejholec does not dispute that prior to questioning, he was properly Mirandized and consented to questioning. Rejholec moved to suppress his custodial statements, via a Miranda / Goodchild hearing, on the ground that his confession was coerced and involuntary given the tactics used by Edson. The circuit court held an evidentiary hearing and denied Rejholec's motion. Rejholec pled no contest² and now appeals.³

Interrogation

¶6 Rejholec's interrogation lasted one hour and thirty-six minutes.⁴ The first accusation of sexual assault/contact was made thirty minutes into the interrogation. Rejholec denied having sexual contact with the child and told Edson that the child was "a compulsive little liar" and "all she does is lie," including about Rejholec "touching her." Edson then falsely told Rejholec that police had collected semen from the child's abdomen and vagina. Rejholec denied that any semen found on the child would be his. Edson countered, "What if it did come back to match your DNA, how would you explain that?" Rejholec replied, "I have nothing to worry about, there's nothing on her."

¶7 Forty-one minutes into the interrogation, Rejholec denied showing the child pictures on the computer of "kids or adults naked." Edson responded,

I'm sitting here in this chair and I don't believe what you are saying, [and] I think a judge and a jury are going to have even more questions. And when it gets to that point, you don't want a judge and a jury making judgment against you based on the fact that they think you are lying. It's—the stuff always comes out in the end and you're not—if your attorney is any good they are probably not going to let you tell your side of the story. They are probably not going to let you get in front of a jury so the jury is not going to hear your side of the story. They are not going to—all they are going to know is that you lied. Ok?

¶8 Forty-nine minutes into the interrogation, Rejholec asked for a restroom break, and when the interrogation resumed Edson asked Rejholec, "So where do you want to start?" Rejholec agreed that the child was "pretty sexual for her age," and he explained that she did try "to put moves on [him]" but that he did not "give in to her." Edson responded, "When was the first time you ever had any sexual contact with her?" Rejholec said he did not have any sexual contact with the child. Edson then replied, "I don't believe you, alright.... If you're not going to take full responsibility for what happened it's going to be hard for me to help you in the long run ... when I do my report to make sure that you get treated fairly."

¶9 At the fifty-five minute mark, Edson repeated his lie about the police taking "swabs of various different sources from [the child's] body" as well as samples from "clothing as well as from bedsheets." Edson told Rejholec that "DNA evidence ... doesn't lie." Edson continued, "I know that you had sexual contact with her. I know you did, and I'm going to prove it through forensic evidence," to which Rejholec responded, "How do you know? She's lying."

¶10 At the one hour and four minute mark, Rejholec denied that forensic evidence would prove that he had sexual contact with the child. Edson responded,

[Y]ou just keep stacking up the lies and it gets worse and worse and worse for you until at some point the jury says we are going to make an example out of this guy. This guy clearly doesn't appreciate what he did. He has made no attempt to say he is remorseful or sorry about what happened. All he has done is lie. He has lied to the cop, to the DA's office.^{[5 ]} He has lied, lied, lied, lied, lied ....

Edson then repeated his earlier threat, stating, "I don't want to see a jury say this is the guy we are going to make an example out of because [Rejholec] doesn't take responsibility. He clearly doesn't feel sorry for what happened."

¶11 At the one hour seven minute mark, Edson told Rejholec:

[O]nce we are done talking, you and I are not going to have another chance to talk, [Rejholec]. Ok. Cause most likely you'll get an attorney, either through a public defender or you will hire an attorney yourself, and the first thing that attorney is going to tell you is you're not going to talk to the police anymore. You're not going to get a chance to tell your story. So the jury is never going to hear your side of the story.

(Emphasis added.)

¶12 Three minutes later, Rejholec denied Edson's accusation that he had sexual intercourse with and had ejaculated in the child and denied that the child masturbated him, but he admitted that "[s]he tried a little bit." Edson responded, "I have a feeling that we are going to find your semen ... on her clothes or on her hands or on her abdomen. Did that happen?" Rejholec replied that police would not find that evidence. He then asked if he would go to prison. Edson explained,

I don't know if you are going to jail or the prison, I really don't. A lot of it depends on your honesty and your willingness to say I'm sorry for what happened. People that don't show remorse and that society is afraid is going to do stuff like this again, they want to put them away for a long time.... But if you can explain yourself, and people can understand why what happened happened, then there is less of a need for the courts to feel we got to protect the public and give you opportunities to get your life back together, to not spend a lot of time in prison and to get back on track and to get some counseling and to ... get back to where you should be.

When Rejholec denied the accusation that his penis was in the child's mouth, Edson accused Rejholec of "moving backwards" and reiterated that "you don't have any reason to trust me other than you have my word. I'm telling you that I am a man of my word, and I hope you believe me because I'm looking you in the eye, and I'm telling you that I'm a man of my word. And I'm here to help you out to get through this."

¶13 Rejholec then asked, "What about having a lawyer involved?" Edson said, "I'm trying to give you an opportunity to tell your side of the story before it's too late to be able to do that...." Edson continued, "I'm here just to get the facts and to support your end of this to tell your story ," followed by a threat to tell the district attorney that Rejholec "lied" and "obstructed." (Emphasis added.) Edson concluded by telling Rejholec that "you know, right now, I'm the one that is going to be able to help you the most I think by telling your story. " (Emphasis added.) Rejholec...