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COURT OF APPEALS DECISION DATED AND RELEASED October 16, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0098-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
SCOT A. CZARNECKI,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Walworth County:
MICHAEL S. GIBBS, Judge. Reversed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. The State appeals from an order which suppresses a
statement made by Scot A. Czarnecki.
The issue is whether the police officer's inability to recite the
statement verbatim precludes its admissibility. We conclude that a statement was made and reverse the order.
In investigating four
house burglaries, Czarnecki was taken to the police station for an
interview. The police investigator
testified at the Miranda/Goodchild[1]
hearing that after receiving and waiving his Miranda rights,
Czarnecki admitted that he had done two of the four break-ins. The investigator further testified that when
Czarnecki was asked why he was carrying a towel with a brick in it, Czarnecki stated,
"`What do you think I had it for,' or words to that effect."
The trial court found
that Czarnecki's statement that, "I did those two, but I didn't do the
others," was made after the Miranda warnings and prior to
the request for counsel. That statement
was held admissible. Although the court
found that the statement regarding possession of the brick was voluntary, it
suppressed the statement because the investigator could not give an exact recitation
of what was said. The court ruled that
"words to that effect" lacked sufficient reliability. The State appeals from the suppression of
Czarnecki's admission regarding possession of the brick.
At the Miranda/Goodchild
hearing, the trial court performs two functions: first, it determines the evidentiary or historical facts of the
circumstances surrounding the giving of the oral statement; and second, it
applies those facts to resolve the constitutional questions as to adequate
advisement of Miranda rights and constitutionality of a waiver of
those rights. See State v.
Woods, 117 Wis.2d 701, 714-15, 345 N.W.2d 457, 464 (1984). Findings of evidentiary or historical facts
will not be upset on appeal unless clearly erroneous. We independently determine the constitutional questions. Id. at 715, 345 N.W.2d at 465.
This appeal involves
neither the trial court's fact-finding function nor a determination of
constitutional law. Rather, it calls
into play a function of the Miranda/Goodchild
hearing rarely ever questioned—the trial court's implicit determination that
the defendant made a statement or confession.
Whether a statement was made is a threshold requirement of
admissibility. See
§ 908.01(4)(b)1, Stats.
Section 908.01(1), Stats., defines "statement"
as an oral assertion or nonverbal conduct of a person, if it is intended by the
person as an assertion. The
determination of whether the police investigator was testifying about a
"statement" Czarnecki made is a question of law which we review
without deference to the trial court. See
State v. Zimmerman, 185 Wis.2d 549, 554, 518 N.W.2d 303, 304 (Ct.
App. 1994).
The investigator related
Czarnecki's response to a question about his possession of the brick. The investigator's use of the phrase
"or words to that effect" does not diminish the fact that Czarnecki's
response was generally "What do you think I was doing with it?" Czarnecki intended an assertion in response
to the question about possession of the brick and the investigator conveyed
that response.
It was not necessary
that the police investigator be able to repeat verbatim what Czarnecki said in
response to the question. All that is
necessary is that police officers be able to state in general terms the content
of the admissions.[2] See State v. Miller, 35
Wis.2d 454, 464-65, 151 N.W.2d 157, 161-62 (1967) (sufficient for officers to
state in general terms the substance of confession or statement). The investigator's use of the phrase
"or words to that effect" signals to the jury whatever ambivalence
there might be in the investigator's memory as well as the tenor of Czarnecki's
response. Quite clearly, the
credibility of the investigator's testimony was not for the trial court to
determine at the Miranda/Goodchild hearing. Miller, 35 Wis.2d at 465, 151
N.W.2d at 162, holds that "[i]t is not the function of the court at that
stage to determine the weight and credibility of confession or admission nor
the accuracy of the witness relating it at the trial. These are functions of the jury (or the court) at the trial."
We conclude that the
trial court made an error of law in suppressing the investigator's testimony
that Czarnecki replied, "`What do you think I had it for,' or words to
that effect." It was a
statement. It was found to be
voluntary. It is for the jury to
determine the reliability of the investigator's recollection.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.